Citation Nr: 21032269 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-62 834 DATE: May 26, 2021 ORDER The claim of entitlement to service connection for a right knee disorder, to include patellofemoral pain syndrome with degenerative arthritis, is denied. The claim of entitlement to service connection for a left knee disorder, to include patellofemoral pain syndrome with degenerative arthritis, is denied. The claim of entitlement to service connection for a right shoulder impingement syndrome is denied. The claim of entitlement to service connection for a left shoulder disorder, to include impingement syndrome with acromioclavicular (AC) osteoarthritis, is denied. The claim of entitlement to service connection for foot fungus, to include dermatophytosis (onychomycosis of the toenails), is denied. The claim of entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is denied. The claim of entitlement to an initial compensable rating for lumbar strain prior to June 30, 2016, and in excess of 10 percent thereafter, is denied. The claim of entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED The claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. The claim of entitlement to service connection for headaches, (formerly claimed as traumatic brain injury (TBI)), and to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right knee disorder, patellofemoral pain syndrome with degenerative arthritis, began during active service, within a year from service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's left knee disorder, patellofemoral pain syndrome with degenerative arthritis, began during active service, within a year from service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran's right shoulder impingement syndrome began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's left shoulder impingement syndrome with acromioclavicular (AC) osteoarthritis began during active service, within a year from service or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that the Veteran's dermatophytosis (onychomycosis of the toenails) began during active service or is otherwise related to an in-service injury or disease. 6. Throughout the entire appellate period, the Veteran's PTSD has been manifested by symptoms that cause 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 symptoms have not caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. 7. Prior to June 30, 2016, the Veteran's lumbar spine disability did not result in forward flexion of 60 degrees or less; his combined range of motion (ROM) did not result in 170 degrees or less; his lumbar spine did not demonstrate muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and he did not have incapacitating episodes of at least 2 weeks. 8. From June 30, 2016, the Veteran's lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined ROM of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 9. During the appeal period, audiometric examinations conducted show that the Veteran had no worse than Level I hearing loss, bilaterally. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, patellofemoral pain syndrome with degenerative arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113. 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2020). 2. The criteria for service connection for a left knee disorder, patellofemoral pain syndrome with degenerative arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113. 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2020). 3. The criteria for service connection for a right shoulder disorder, impingement syndrome, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113. 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2020). 4. The criteria for service connection for a left shoulder disorder, impingement syndrome with AC osteoarthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113. 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2020). 5. The criteria for service connection for a chronic skin disorder, onychomycosis of the toenails, have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 6. The criteria for an initial disability rating in excess of 50 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (DC) 9411 (2020). 7. The criteria for an initial disability rating in excess of 10 percent prior to June 30, 2016, and in excess of 20 percent thereafter for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237 (2020). 8. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.87, DC 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to February 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in July 2020. A transcript of that hearing is of record. The claims on appeal were remanded for additional development in a July 2020 remand decision and have now been returned to the Board for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a veteran must show: (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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2020). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b) (2020). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases (e.g., osteoarthritis) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2018); 38 C.F.R. §§ 3.307, 3.309(a) (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107 (2012); 38 C.F.R. § 3.102 (2020); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for right and left knee disorders. The Veteran contends that he currently suffers from chronic disorders of the knees due to in-service standing for great lengths of time. Post service VA records include report of mild degenerative changes in the knees (e.g., see VA X-rays in September 2015). The Veteran contends that his joint problems are due to in-service marching, hiking, and jumping out of and off of howitzers, ammo carriers, and trucks during his time in Desert Storm. He recalls that he was treated for each of these conditions by a medic during service. His knee disorders have worsened over the years due to his in-service and post service playing of sports. Upon VA examination of the knees in October 2020, the claims file was reviewed, and an in-person examination was conducted. It was the examiner's opinion that it was less likely as not (less than a 50 percent or greater probability) that bilateral knee disabilities were related to or resulted from active duty service. The VA examiner explained that left and right knee conditions, diagnosed as patellofemoral pain syndrome and degenerative joint disease (DJD), were not related to service as there are no records to support a finding of a causal connection to service and were not incurred in active service or caused by any claimed in-service injury, event, or illness. Moreover, review of the treatment records failed to reveal evidence of a diagnosed bilateral knee disorder during the one-year presumptive period following your release from active duty. For these reasons, it was held that there is no basis for establishing service connection for the claimed conditions on either a direct or presumptive basis. In this case, the VA examiner's 2020 opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of knee problems during and since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current knee diagnoses. The issue is medically complex, as it requires knowledge of the musculoskeletal system and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the competent and objective post-service treatment records and imaging showed no findings consistent with his current bilateral knee diagnoses for years after service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Consequently, the Board gives more probative weight to the medical records and October 2020 VA opinion which do not support the Veteran's contentions that he incurred bilateral knee disorders during service which have persisted. Accordingly, the Board finds that the preponderance of the evidence weighs against a causal nexus between the Veteran's knee disabilities and service. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See Gilbert, supra. Entitlement to service connection for right and left shoulder disorders. The Veteran also contends that he suffers from chronic disorders of the shoulders from in-service falls that he suffered. Post service VA records include reports of bilateral shoulder pain and left shoulder tendinopathy was noted upon magnetic resonance imaging (MRI) in December 2015. The Veteran contends that his joint problems are due to in-service marching, hiking, and jumping out of and off of howitzers, ammo carriers, and trucks during his time in Desert Storm. He recalls that he was treated for each of these conditions by a medic during service (not corroborated in the record). His shoulder problems have worsened over the years due to his in-service and post service playing of sports. When examined by VA in October 2020, the claims file was reviewed, and an in-person examination was conducted. Shoulder diagnoses included bilateral impingement syndrome and left acromioclavicular joint osteoarthritis. The Veteran reported limited range of motion (ROM), occasional extreme pain, and pain with overhead use. It was opined by the VA examiner that the bilateral shoulder disorders were less likely than not related to military service. As above, when discussing the Veteran's knee disorders, the VA examiner's 2020 opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, supra. While the Veteran is competent to report having experienced symptoms of shoulder problems during service and thereafter, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of any current shoulder diagnosis. The issue is medically complex, as it requires knowledge of the musculoskeletal system and interpretation of complicated diagnostic medical testing. Jandreau, supra. Moreover, the competent and objective post-service treatment records and imaging showed no findings consistent with his current bilateral shoulder diagnoses for years after service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson, supra. As a result, the Board gives more probative weight to the medical records and October 2020 VA opinion which do not support the Veteran's contentions that he incurred bilateral knee shoulder disorders during service which have persisted. Accordingly, the Board finds that the preponderance of the evidence weighs against a causal nexus between the Veteran's shoulder disabilities and service. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See Gilbert, supra. Entitlement to service connection for foot fungus. The Veteran has reported that he also has a foot fungus which started during service and continues to the present day (not corroborated in the record). Again, he recalls that he was treated for such by a medic during service. Post service VA records dated through 2020 reflect a notation of "dry" skin in 2019, but no chronic skin disability was indicated at any time. Upon VA skin examination in October 2020, the claims file was reviewed, and an in-person evaluation was conducted. Dermatophytosis (onychomycosis of the toenails) was diagnosed. The onset of the disorder was listed as 2017. Current symptoms included mild nail fungus of the bilateral toes. The VA examiner found that it was less likely than not that a chronic skin disorder of the feet was related to service. The examiner acknowledged that the Veteran said that this condition originated during service but noted that there were no records to support such. It was the VA examiner's opinion that onychomycosis of toenails was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In this case, the VA examiner's 2020 opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, supra. As already noted, the Veteran is competent to report having experienced skin symptoms during and since service, but he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of any current skin problem. Jandreau, supra. Moreover, it was not until many years post discharge that any skin problem was reported. See Maxson, supra. Consequently, the Board gives more probative weight to the medical records and October 2020 VA opinion which do not support the Veteran's contentions that he incurred a chronic skin disorder during service. Accordingly, the Board finds that the preponderance of the evidence weighs against a causal nexus between the Veteran's onychomycosis of the toenails. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See Gilbert, supra. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.321(a), 4.1 (2020). Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14 (2020); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown,6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson,21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown,7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2018);38 C.F.R. § 3.102 (2020). Entitlement to a rating in excess of 50 percent for PTSD. Throughout the periods on appeal, the Veteran was rated under DC 9411. Under DC 9411, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula) - A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. At the July 2020 hearing, the Veteran testified that his service-connected PTSD, had worsened since last examined in 2016. Specifically, as to PTSD, he experienced increased anxiety and described having occasional suicidal thoughts. Chronic PTSD and persistent depressive disorder were diagnosed upon VA examination in May 2014. Only his social domain was mildly impacted. Occupational and social impairment were best represented by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. The Veteran had a few friends and socialized with them. He enjoyed sports but had significant difficulty being in the presence of crowds. He continued to be employed as a teacher. He had recurrent involuntary distressing memories of traumatic events, distressing dreams, dissociative reactions (e.g., flashbacks), avoided reminders that aroused distressing memories, thoughts, or feelings. He was detached from others and hard diminished interest in participating in significant activities. He was sometimes irritable and reckless, hypervigilant, and experienced sleep problems. Symptoms included a depressed mood, anxiety, and panic attacks that occurred weekly or less often. When examined by VA in June 2016, the claims file was reviewed, and an in-person examination was conducted. The diagnosis was PTSD with depressive disorder. As for occupational and social impairment, the examiner checked the box which provided that the Veteran had a mental condition that had been formally diagnosed but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. Since last examined, the Veteran said that he had been in a custody battle and under a great deal of stress. In addition to problems as noted in 2014, he had problems with concentration and suicidal ideation. His most recent ideation occurred in connection with his divorce (8 years previous). The examiner noted that the Veteran still had persistent anxiety connected to PTSD. He experienced chronic sleep impairment, poor concentration, and was suspicious of others. The severity of PTSD seemed to be less impacting that it was at the time of the previous evaluation. He continued to maintain employment as a middle school teacher. He was married and had a good relationship with his wife. Upon VA mental health examination in September 2020, the claims file was reviewed, and an in-person examination was conducted. Occupational and social impairment were best represented by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication. The Veteran had a positive relationship with his family. He did have difficulty trusting other people and kept his social circle small. His anxiety increased in social settings. He had a few friends from church and from the military. He attended church and participated in a men's group. His hobbies included robotics and shooting/target practice. He continued to be employed as a teacher. He tended to keep to himself but got along with his coworkers. few friends and socialized with them. He enjoyed sports but had significant difficulty being in the presence of crowds. He continued to be employed as a teacher. He had recurrent involuntary distressing memories of traumatic events, distressing dreams, dissociative reactions (e.g., flashbacks), avoided reminders that aroused distressing memories, thoughts, or feelings. He was detached from others and hard diminished interest in participating in significant activities. He was sometimes irritable and reckless, hypervigilant, and experienced sleep problems. Symptoms included a depressed mood, anxiety, and panic attacks that occurred weekly or less often. His symptoms included anxiety and depressed mood, suspiciousness, chronic sleep impairment, and disturbances of mood and motivation. Applying the relevant legal criteria to the facts in this case, the Board concludes that the preponderance of the evidence is against the assignment of an initial rating in excess of 50 percent for PTSD. The Board finds that during the appellate period, the most probative evidence reflects that the Veteran has not experienced speech deficits (speech was always normal); near-continuous panic or depression affecting his ability to function independently, effectively, or appropriately (while he exhibited chronic depression and anxiety, the Veteran is shown to function independently in activities of daily living); impaired impulse control; spatial disorientation (he was always alert and oriented to person, time, place, and purpose); neglect of personal appearance or hygiene (he was always neatly dressed); gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviors; persistent danger of hurting himself or others; an inability to perform activities of daily living; or severe memory loss, all of which are listed symptoms for 70 or 100 percent ratings under 38 C.F.R. § 4.130, DC 9411. The Veteran submitted lay statements and VA treatment records showing his most common psychiatric symptoms were distressful memories, anxiety, depressed mood, flattened affect, irritability, exaggerated startle response, chronic sleep impairment with dreams and flashbacks, and isolation, suspiciousness, panic attacks that occur weekly or less often, and disturbances of motivation and mood. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126 (2020). In particular, a 50 percent evaluation contemplates impairment of disturbances of mood and motivation and difficulty establishing and maintaining social relationships. The Veteran's chronic sleep impairment, suspiciousness and panic attacks (weekly or less often) correlate with a 30 percent rating under 38 C.F.R. § 4.130 (2020) and are therefore contemplated by the higher 50 percent evaluation. The Veteran's service-connected PTSD has most closely approximated occupational and social impairment with mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by medication which is contemplated in a 50 percent rating. Although the Veteran reported irritability, there is no evidence that he experienced periods of violence during the appellate period. In addition, although he reported suicidal ideation in 2016, it was noted that this was in the past (approximately 8 years earlier) and this appears to be one of the only symptoms that he has reported that correlates with a 70 percent rating under 38 C.F.R. § 4.130 (2020). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds that the Veteran's current symptoms of PTSD, including the overlapping symptoms with depression, are adequately contemplated by the current 50 percent disability rating. Consequently, the Board finds that the Veteran's entitlement to an initial evaluation in excess of 50 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2020). Entitlement to a compensable rating for lumbar strain prior to June 30, 2016, and in excess of 10 percent thereafter, is denied. The Veteran's lumbar spine disorder is rated as noncompensable under 38 C.F.R. § 4.71a, DC (DC) 5237 from December 13, 2013, to June 30, 2016, and has been rated at 10 percent from June 30, 2016, forward. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. In this case, there is no evidence that the Veteran's disability has resulted in IVDS requiring prescribed bed rest. Id. On this basis, the Board need not further discuss these alternative rating criteria. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 (2020) requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion (ROM) testing. 38 C.F.R. § 4.45 (2020) requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 38 C.F.R. § 4.71a (2020). The General Rating Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. Id. DC 5243 provides ratings for lumbar spine disorders. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined ROM of the thoracolumbar 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined ROM of the thoracolumbar spine not greater than 120 degrees; or 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a; DC 5243 (2020). There are also several relevant note provisions associated with DC 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each ROM measurement to the nearest five degrees. Note (5): 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a; DC 5243 (2020). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, right and left lateral extension are 0 to 30 degrees, and right and left lateral rotation are 0 to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, right and left lateral flexion, and left and right rotation. The normal combined ROM for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). Each ROM measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (4). At the July 2020 hearing, the Veteran testified that his service-connected lumbar strain had worsened since last examined in 2016. Specifically, his lumbar strain now resulted in increased pain with bending or lifting. There was additional loss of range of motion (ROM). When the back was examined by VA in May 2014, the diagnosis was lumbar strain. It was noted that he had lifting injury during service. His treatment included a muscle relaxer and application of ice and heat. He occasionally had flare-ups with increased movement. He had not missed work, and there was no radicular pain. Pain occasionally radiated to the mid-thigh. ROM was from 0 to 90 degrees of forward flexion without painful motion. Extension was from 0 to 30 degrees without painful motion. Bilateral lateral flexion and rotation were from 0 to 30 degrees without painful motion. ROM remained the same after repetitive use testing. There was no pain or localized tenderness or any functional limitations. Strength testing, reflex exam, and sensory examination were all normal. Upon VA examination of the back in June 2016, lumbosacral strain was again the diagnosis. There were no flare-ups, but the Veteran said that he did have some functional impairment which resulted in his inability to lift more than 20 pounds or sit longer than 20 minutes at a time. ROM was from 0 to 90 degrees of forward flexion. Extension was from 0 to 30 degrees. Bilateral lateral flexion and rotation were from 0 to 30 degrees. Pain was noted upon forward flexion and right lateral flexion, but this did not result in functional loss. There was pain on palpation or localized tenderness. This was described as mild. ROM remained the same after repetitive use testing. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. In July 2020, the Board remanded the claim for additional VA examination of the Veteran's chronic low back strain. This examination was to meet the standards of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 20 Vet. App. 26, 36 (2017). When examined by VA in October 2020, there was no lumbar spine diagnosis. ROM testing, to include after three repetitions, was normal without pain or tenderness. There was no pain, weakness, fatigability, or incoordination, and ROM was again noted to be normal. The was no guarding or muscle spasm of the thoracolumbar spine and no loss of strength, ankylosis or atrophy, no arthritic changes, and no neurologic complications. The VA examiner also reported that there is no objective evidence of functional impact on your ability to work and indicated that your condition is characterized by slightly limited flexion without objective evidence of painful movement of the thoracolumbar spine. Prior to June 30, 2016 Based on the review of the evidence of record, the Board finds that the Veteran's low back disability was properly rated as noncompensable prior to June 30, 2016. As noted above, clinical findings prior to that date were minimal, and ROM of the lumbar spine was full and without pain. \ In sum, the Board finds that the preponderance of the evidence is against the claim for an initial compensable rating for the period prior to June 30, 2016. Accordingly, the benefit-of-the-doubt doctrine is not applicable to this aspect of the claim and a compensable rating for lumbar strain is not warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). From June 30, 2016 It was upon VA examination on June 30, 2016, that the Veteran reported painful motion. The examiner noted that the Veteran's back pain significantly limited his functional ability with repeated use over time. Specifically, his lumbar strain interfered with sitting longer than 20 minutes at a time, and he could not lift more than 20 pounds. It is noted, however, that his ROM remained full. At the most recent VA examination in October 2020, clinical findings were minimal. There was full ROM without pain on all ROM testing. The was no guarding or muscle spasm of the thoracolumbar spine and no loss of strength, ankylosis or atrophy, no arthritic changes, and no neurologic complications. The VA examiner reported that there was no objective evidence of functional impact on the Veteran's ability to work and indicated that your condition was characterized by slightly limited flexion without objective evidence of painful movement of the thoracolumbar spine. (This 2020 evaluation is sufficient for rating purposes and deciding the claims pursuant to Sharp, 29 Vet. App. at 26; and Correia, 28 Vet. App. at 158.) Therefore, for the period in question, there is evidence of painful motion, but the Board does not find that forward flexion has been limited to 60 degrees or less. Furthermore, the evidence does not indicate that the low back disability resulted in muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. The evidence does not indicate that the low back disability more closely approximated the criteria for a 20 percent rating for the period from June 30, 2016. 38 C.F.R. § 4.71a, DC 5237 (2020). Therefore, an initial rating in excess of 10 percent for the low back disability from June 30, 2016, forward, is denied. In sum, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for the period from June 30, 2016. Accordingly, the benefit-of-the-doubt doctrine is not applicable to this aspect of the claim and a higher rating in excess of 10 percent for lumbar strain is not warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). Entitlement to a compensable rating for bilateral hearing loss disability. The Veteran contends generally that a compensable rating is warranted for his bilateral SNHL. The Rating Schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85 (2020). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of the 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86 (2020). An examination for the evaluation of hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must contain a pure tone audiometry test and a controlled speech discrimination test, utilizing the Maryland CNC word list. 38 C.F.R. § 4.85(a) (2020). The Veteran testified in July 2020 that his bilateral hearing loss disability had worsened since last examined in 2016. Specifically, there had been increased impairment as to his hearing loss, particularly with interference from background noise. Historically, the Veteran was granted service connection for bilateral hearing loss in a June 2014 rating decision, which assigned a noncompensable (zero percent) rating from December 13, 2013. The Veteran was afforded a VA audiological examination in September 2019, at which time the report revealed pure tone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 35 30 20 20 Left 25 30 35 30 Average pure tone threshold was 26 decibels in the right ear with speech recognition ability of 98 percent. Average pure tone threshold was 30 decibels in the left ear with speech recognition ability of 94 percent. Bilateral sensorineural hearing loss (SNHL) was noted. The examiner stated that the Veteran's bilateral hearing loss disability did not impact the ordinary conditions of his daily life, including his ability to work. The Veteran was afforded additional VA audiological examination in June 2016, at which time the report revealed pure tone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 25 20 15 25 Left 25 20 20 25 Average pure tone threshold was 21 decibels in the right ear with speech recognition ability of 100 percent. Average pure tone threshold was 23 decibels in the left ear with speech recognition ability of 100 percent. Normal hearing was noted. The examiner stated that the Veteran's hearing acuity was impacted at work. As a middle school teacher, when the students looked away, he had a hard time hearing them, especially if they were on his left side. The Veteran was afforded additional VA audiological examination in September 2020, at which time the report revealed pure tone thresholds, in decibels, as follows: Hertz 1000 2000 3000 4000 Right 20 20 20 10 Left 25 15 15 15 Average pure tone threshold was 17.50 decibels in the right ear with speech recognition ability of 96 percent. Average pure tone threshold was 17.50 decibels in the left ear with speech recognition ability of 98 percent. Normal hearing was noted. The examiner stated that the Veteran's hearing acuity impacted ordinary conditions of daily life, including ability to work, in that the Veteran reported that voices were muffled. As a teacher, he had to ask his students to repeat themselves. The audiological findings at each of these examinations translate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. Critically, there is no probative audiology evidence of record to support a compensable rating for the Veteran's bilateral hearing loss disability at any time throughout the appeal period. The preponderance of the evidence is against the Veteran's claim for a compensable rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 55. The Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann v. Principi, 3 Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1(2020). Under these circumstances, the Board finds that the record presents no basis for assignment of a compensable rating for bilateral hearing loss. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. It is contended that the Veteran has sleep apnea which either started during service or is secondary to service-connected PTSD or a seizure disorder. Post service records reflect treatment for possible seizure activity in May 1993. Lumbar puncture and electroencephalography were normal. The Veteran's event was suspected to be psychogenic and not of epileptic origin. When examined by VA in November 1994, the Veteran's history chronic seizure disorder was noted, but the examiner's impression was that this disability was in remission. A diagnosis of mild obstructive sleep apnea is indicated in the VA treatment records from 2016 forward. The Veteran testified that at least one fellow soldier told him during service that he sometime stopped breathing during the night. He also argues that the condition is secondary to his PTSD. He has stated that he now uses a sleep machine every night. Upon VA sleep apnea examination in October 2020, the claims file was reviewed, and an in-person evaluation was conducted. Obstructive sleep apnea (OSA) was diagnosed. Onset was listed as 2017. Manifestations included poor sleep, snoring, and fatigue. His condition had improved with the use of CPAP. Persistent daytime hypersomnolence was noted. It was the examiner's opinion that the Veteran's OSA was less likely than not related to military service. Moreover, the disorder was not aggravated or worsened by PTSD. For rationale, it was noted that there were no records to support a nexus or relationship. With respect to direct service connection, it does not appear that the VA examiner considered the Veteran's reports of in-service sleep apnea symptoms, to include reports of possible breathing difficulties during service. The examiner did not adequately discuss the nature and severity of the Veteran's OSA, and whether his symptoms may in fact be related to a longstanding condition. Moreover, as to whether there is a relationship between the Veteran's OSA and his PTSD, the examiner did not include adequate rationale in support his conclusion that the Veteran's PTSD did not aggravate his sleep apnea. The Board finds the October 2020 examination discussing the potential entitlement to service connection for headaches secondary to the Veteran's service- connected PTSD to be inadequate. The examiner failed to appropriately discuss the likelihood that the Veteran's PTSD has caused his headaches. On remand, an addendum opinion should be obtained. Entitlement to service connection for headaches, to include as secondary to service-connected PTSD. The Veteran has constant headaches at the base of his skull. He contends that this disability could be a direct result of his in-service fall (when he injured his back which is service-connected). He also states that the condition could be secondary to his service-connected PTSD. Available service treatment records (STRs) are negative for complaints of, or diagnosis of, chronic headaches. Post service VA records include complaints of mid-occipital throbbing headaches in July 1997. These headaches occurred approximately twice per week. It was the examiner's opinion that these headaches were musculoskeletal in nature. Upon initial VA examination for PTSD in May 2014 and June 2016, chronic migraine headaches were noted. When examined by VA in October 2020 for headaches, the claims file was reviewed, and an in-person evaluation was conducted. The diagnosis was muscle tension headaches with date of diagnosis in 2018. The examiner acknowledged that the Veteran said that his headaches began during service but noted that there were no records to support such. Medications diagnosed on the Veteran's treatment plan included mobic, aspirin, and Tylenol. At the time of this evaluation, the Veteran reported constant head pain which lasted less than 1 day. The headaches were not prostrating in nature. It was the VA examiner's opinion that the Veteran's muscle tension headaches were less likely than not related to active service event, injury, or illness. He added that there were no records to support a nexus. The claimed condition was also less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The rationale included the following - "headaches adds its own share to it but are not exaggerated by PTSD." On remand, an addendum opinion should be obtained. The matter is REMANDED for the following action: 1. Obtain addendum medical opinions from a clinician(s) other than the examiner who provided the October 2020 medical opinions in this case. The claims file must be available to and reviewed by the new clinician(s). Upon review of the record, the clinician(s) should respond to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had onset in, or is otherwise related to the Veteran's period of service? In providing a response, please consider the Veteran's reported history of symptoms, as well as the nature and severity of the Veteran's sleep apnea disability. The examiner should discuss whether the current nature and severity of the Veteran's disability is consistent with a finding that at least as likely as not had onset during service. b) Notwithstanding the answer to the above question, is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused or aggravated by his service-connected PTSD, or medications taken to treat the Veteran's service-connected PTSD? The examiner should discuss both causation and aggravation, with consideration of the medical treatise evidence submitted by the Veteran during the appeal. c) It is at least likely as not (50 percent or greater probability) that the Veteran's chronic muscle tension headaches are caused by his PTSD symptoms? d) It is at least as likely as not (50 percent or greater probability) that the Veteran's chronic muscle tension headaches have been aggravated (permanently worsened beyond normal progression) by his PTSD? All opinions should be supported by a medical explanation or rationale. If in the opinion of the reviewing clinician(s), answers to the questions above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 2. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hal Smith, 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.