Citation Nr: 21041526 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-20 179 DATE: July 9, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. Service connection for left ear hearing loss is granted. Service connection for GERD is granted. Entitlement to an evaluation in excess of 10 percent for lumbar strain, is denied. Entitlement to an evaluation in excess of 20 percent for radiculopathy, sciatic nerve right lower extremity, is denied. Entitlement to an evaluation in excess of 20 percent for radiculopathy, sciatic nerve, left lower extremity, is denied. Entitlement to an evaluation in excess of 20 percent for radiculopathy, femoral nerve, right lower extremity, is denied. Entitlement to an evaluation in excess of 20 percent for radiculopathy, femoral nerve, left lower extremity, is denied. Entitlement to a compensable evaluation for right ear hearing loss is denied. REMANDED Service connection for a right shoulder disorder is remanded. Service connection for a gastrointestinal disorder (other than GERD) to include irritable bowel syndrome (IBS) and chronic diarrhea and to include as secondary to service-connected disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for a bilateral hip disability to include as secondary to service-connected disability, is remanded. Entitlement to service connection for bilateral foot disability to include as secondary to service-connected disability, is remanded. Entitlement to service connection for a respiratory disorder (other than OSA) is remanded. Entitlement to a rating in excess 10 percent for mild tricompartmental degenerative changes of the right knee is remanded. Entitlement to a rating in excess of 20 percent for macerations of the posterior horn of lateral meniscus, oblique tear of the anterior wall of lateral meniscus, tears of posterior horn of medial meniscus, grade I chondromalacia patella (formerly rated as right knee subluxation with torn meniscus) associated with mild tricompartmental degenerative changes, of right knee, is remanded. Entitlement to a rating in excess of 10 percent for arthritis of the left knee with medial meniscus tear is remanded. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) and depressive disorder, with anxiety, panic, traumatic brain injury (TBI) and sleep disturbance, is remanded. Entitlement to a separate rating for residuals of TBI, is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches, is remanded. Entitlement to a rating in excess of 20 percent for cervical strain with intervertebral disc syndrome (IVDS), is remanded. Entitlement to an effective date prior to September 14, 2016 for a permanent and total rating is remanded. FINDINGS OF FACT 1. OSA is attributable to service. 2. GERD is attributable to service. 3. Left ear hearing loss is attributable to service. 4. The Veteran's low back disability does not result in 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 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; or IVDS. 5. The Veteran's right sciatic nerve impairment is manifest by, at worst, moderate impairment. 6. The Veteran's left sciatic nerve impairment is manifest by, at worst, moderate impairment. 7. The Veteran's right femoral nerve impairment is manifest by, at worst, moderate impairment. 8. The Veteran's left femoral nerve impairment is manifest by, at worst, moderate impairment. 9. The Veteran has Level I hearing in his right ear and Level I hearing in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. 4. The criteria for a rating in excess of 10 percent for lumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 5. The criteria for a rating in excess of 20 percent for radiculopathy, right lower extremity of the sciatic nerve, associated with back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for a rating in excess of 20 percent for radiculopathy, left lower extremity of the sciatic nerve, associated with back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 7. The criteria for a rating in excess of 20 percent for radiculopathy, right lower extremity of the femoral nerve, associated with back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 8. The criteria for a rating in excess of 20 percent for radiculopathy, left lower extremity of the femoral nerve, associated with back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 9. The criteria for a compensable evaluation for hearing loss disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard from December 30, 1987 to April 1, 1988 and from October 20, 1990 to March 16, 1991 and in the Army from July 5, 1996 to April 1, 1997, from April 12 1997 to August 20, 1997, from April 12, 1998, to December 20, 1999, from February 19, 2003 to April 27, 2004 and from June 5, 2007 to August 5, 2008. The Veteran had subsequent periods of active duty for training (ADT) and inactive duty training (IDT). As a preliminary matter, the Board of Veterans' Appeals (Board) notes that there are several unappealed and final rating decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) that are relevant to this appeal. In an October 2002 rating decision, the AOJ denied service connection for a right shoulder disorder; in October 2005 and January 2006, the AOJ denied service connection for vertigo as part of a right ear condition, for a right shoulder disorder, for a bilateral hip disability, and for a bilateral foot disability; in October 2009, the AOJ denied service connection for OSA and a digestive disorder; and in September 2013, the AOJ denied service connection for left ear hearing loss. However, subsequent to these final AOJ decisions, relevant service records have been received. The additional service records were not considered by the earlier final decisions, so new and material evidence sufficient to reopen these service connection claims is not required, and the claims must be reconsidered on the underlying merits. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(c), 3.160(d), 20.200, 20.1103. The Board notes further that the claim of service connection for a digestive disorder encompasses both the claim of service connection for GERD as well as the claim of service connection for IBS/bowel disorder (addressed in the remand portion of this decision). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases including sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Service connection may also be granted for disability resulting from disease or injury incurred during ADT, or injuries suffered during IDT to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 1106; 38 C.F.R. § 3.6(a). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for OSA The Veteran has indicated in written correspondence and at his January 2021 Board hearing that he began having problems breathing while he was asleep during his military service and he has submitted lay evidence in support of his statements, including from his spouse. Turning to the medical evidence, in July 2004, close in proximity to his April 2004 separation from a period of active duty, it was noted that he had a history of OSA. Subsequently, the Veteran initially underwent a VA examination and sleep study testing in 2013. He was diagnosed with severe OSA at that time. The VA examiner's opinion noted the following: "it is likely not related to military" since there are notes dating back to 2012 stating that he tried to get sleep studies several times and canceled, and was told in 2004 by driver who was in a tent with him that he had sleep problems with snoring/apnea, also witnessed by his wife. The Board notes that there appears to be a typographical error in the opinion as although the examiner stated that OSA is "likely not related" to the Veteran's military service, it is clear from the rationale that the examiner was linking the Veteran's OSA to his military service and essentially concluded in the narrative that the condition was 'as likely as not related' to service. This conclusion is clearly consistent with the rest of the examiner's statement and the record which substantiates what was historically noted on the examination report. As noted, there is a notation of OSA in 2004, lay evidence of OSA contemporaneous to service, and a myriad of records dated since 2004 that the Veteran has had symptoms consistent with the later diagnosis of OSA. In December 2017, a VA examiner opined that OSA is less likely as noted related to the military because it was not shown in the service records; however, 38 C.F.R. § 3.303(d) does not require an inservice diagnosis. The Board finds that the positive medical and lay evidence outweigh the incomplete December 2017 medical opinion which the Board finds includes an inadequate explanation for the conclusion reached. As such, service connection for OSA is warranted. 2. Service connection for GERD At his Board hearing and in correspondence, the Veteran indicated that he experiences GERD due to his repeated exposure to the Balad pit burnings during his Persian Gulf service. He described the toxins and wastes which were burned. He has been afforded a VA examination to assess his claim in October 2017. At the time, the Veteran stated that his symptoms started in 2004 after he gained weight from an inservice accident. His symptoms caused him to go to the emergency room about once every year for chest pain. He related that his symptoms had been progressively occurring more frequently and more intensely. He stopped eating fried food and unhealthy choices. He had acid reflux and heartburn. The examiner opined that the GERD was at least as likely as not related to service. The examiner indicated that the GERD was a direct result of the inservice Balad burn pit exposure. The examiner explained the following. Toxins in burn pit smoke may affect the skin, eyes, respiratory and cardiovascular systems, gastrointestinal tract and internal organs. According to the record review, the Veteran has a long term history of established GERD which was first noted on record in 2008, which was in the timeframe he was deployed to Iraq in 2007 to 2008. In light of the foregoing, the Board finds that service connection for GERD is warranted. 3. Service connection for left ear hearing loss Hearing loss disability is defined by regulation. For the 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; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that 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). The Veteran contends that he was exposed to acoustic trauma during service. The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire." American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran was exposed to acoustic trauma multiple times during his service, including from a mortar blast in close proximity. His right ear hearing loss has been service-connected. Hearing loss disability was not shown during service. However, an October 2017 VA audiological examination revealed left ear hearing loss at 4,000 Hertz and at 6,000 Hertz per 38 C.F.R. § 3.385. The examiner indicated that the Veteran's hearing loss was at least as likely as not related to service. The examiner also opined that hearing loss preexisted service. The report noted that on entrance, a hearing loss was shown at 6,000 Hertz which was not aggravated because his 2008 separation examination did not show hearing loss. The Board accepts that the hearing loss currently shown at 4,000 Hertz, which meets the VA definition of hearing loss, is at least as likely as not related to service per the notation that the Veteran's hearing loss was at least as likely as not related to service. Accordingly, service connection is warranted. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. When rating service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Generally, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 4. Entitlement to an evaluation in excess of 10 percent for lumbar strain 5. Entitlement to an evaluation in excess of 20 percent for radiculopathy, sciatic nerve, right lower extremity 6. Entitlement to an evaluation in excess of 20 percent for radiculopathy, sciatic nerve, left lower extremity 7. Entitlement to an evaluation in excess of 20 percent for radiculopathy, femoral nerve, right lower extremity 8. Entitlement to an evaluation in excess of 20 percent for radiculopathy, femoral nerve, left lower extremity In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran's service-connected lumbar strain is rated under the provisions of Diagnostic Codes 5010-5237. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38C.F.R. §4.71a, including Diagnostic Codes 5003 and 5010, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board is to consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board is to consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5010 provided that the rating for arthritis due to trauma was determined under the criteria pertaining to degenerative arthritis, Diagnostic Code 5003, which rated based on limited motion. 38C.F.R. §4.71a. Since February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis shall be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.35. Since the old and new Diagnostic Code 5010 indicate that the joint is rated based on limitation of motion, for the purposes of this case, the amendment to Diagnostic Code 5010 does not affect the Veteran's claim. Further, the criteria for Diagnostic Code 5237 pertaining to lumbar strain were not revised and the General Rating Formula for Diseases and Injuries of the Spine remains intact. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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 of more of height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for 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 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a. 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 combined range of motion 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. Id. at Note (2); see also 38 C.F.R. § 4.71, Plate V. Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. Unfavorable ankylosis is defined as 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 certain restricted movements or other symptoms which are not present herein. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Alternatively, intervertebral disc syndrome can be rated based on incapacitating episodes under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). However, the Veteran has not established service connection for IVDS and the record does not reflect that his lumbar strain has resulted a relevant period of an "incapacitating episode", 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. Under the General Rating Formula, any associated objective neurologic abnormalities are separately rated under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Radiculopathy or impairment of the sciatic nerve is rated under Diagnostic Code 8520, on the basis of complete or incomplete paralysis of the sciatic nerve, or neuritis or neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and moderately severe incomplete paralysis is rated as 40 percent disabling. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy. 38 C.F.R. § 4.124a. Similarly, impairment of the anterior crural or femoral nerve is 10 percent for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, and 30 percent for severe incomplete paralysis, while a 40 percent rating is assigned for complete paralysis of the quadriceps extensor muscles. Id., Diagnostic Code 8526. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's 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. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination in November 2017. The Veteran reported that he had recurrent sharp pain, pain with bending and kneeling, and an inability to walk for long periods of time or engage in physical activity that might cause him pain. The Veteran said his back symptoms occurred several times a day and sometimes he was immobilized, usually with pain on a 10+ scale. The duration was normally a few minutes. The Veteran stated that when he did any physical activity that involved moving of the lower back, he had pain and had to freeze until the pain subsided. On examination, the Veteran had forward flexion of zero to 65 degrees, extension of zero to 20 degrees, right lateral flexion of zero to 25 degrees, left lateral flexion of zero to 30 degrees, and right and left lateral rotation to 25 degrees. There was no ankylosis. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. Pain was noted on examination on rest and non-movement on forward flexion and extension. There was evidence of pain with weight bearing. There was no additional loss of function or range of motion after three repetitions. The examination was noted to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was not able to say without speculation whether there was pain, weakness, fatigability or incoordination that significantly limited functional ability with repeated use over a period of time. The examination was noted to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare ups. Passive range of motion of the spine was not performed as it was not feasible to do this in a safe and reasonable manner. The Veteran did not have guarding or muscle spasm or muscle atrophy. There were no additional contributing factors of disability. Muscle strength was 4/5 in all directions. Deep tendon reflexes were normal at the knees and hypoactive at the ankles. Sensory examination was decreased in all areas down the extremities. Straight leg raising was positive on both sides. There was radicular pain and signs or symptoms due to radiculopathy. Specifically, there was constant mild pain on both sides; intermittent moderate pain on both sides; moderate paresthesias and/or dysesthesias and numbness on both sides. The examiner indicated that there is moderate impairment of the sciatic nerve and quadriceps nerve on both sides. There was no other neurological impairment. There was no IVDS. He constantly used a cane for his back and knees. A prior magnetic resonance imaging (MRI) revealed degenerative joint disease, narrowing of L5-S1. His impact on working would be difficulty walking, standing, lying down, bending, and with prolonged sitting. The diagnosis was lumbar strain with radiculopathy. The lower extremity neurological impairment was noted to be etiologically related to the lumbar spine disability. Lumbar Spine A higher 20 percent rating for the lumbar spine contemplates 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 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. With regard to limited motion, the Veteran's forward flexion was, at worse, 65 degrees, even with the DeLuca and related Court case factors considered. With factors affecting motion such as pain, he was still able to forward flex to 65 degrees. Moreover, he did not have combined range of motion 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. On VA examination, the Veteran did not have muscle spasms or the abnormalities indicated. As such, a higher rating for the lumbar spine is not warranted. Sciatic and Femoral Nerve Impairment With regard to impairment of the sciatic nerve on both the right and the left, the evidence demonstrates no more than overall moderate impairment. Likewise, no more than overall moderate impairment of the femoral nerve on both sides is shown. The VA examiner assessed all pertinent neurological testing and concluded that moderate impairment was the level of severity shown. As such, higher ratings for the right sciatic nerve, left sciatic nerve, right femoral nerve, and left femoral nerve, are not warranted. 9. Increased rating for right ear hearing loss In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. See 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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 Roman numeral. See 38 C.F.R. § 4.86(b). In conjunction with his claim for an increased rating, the Veteran was afforded a VA audiological examination in August 2017. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ \ 1000 2000 3000 4000 average RIGHT 5 5 25 45 20 LEFT 10 15 30 50 26 Speech audiometry revealed speech recognition ability of 98 in both ears. The examiner noted that the audiometric findings were valid. The examiner indicated that the Veteran had sensorineural hearing loss. The effect on occupational function was that the Veteran had difficulty hearing and understanding speech, often mistaken directions of sounds, misunderstood words and not hearing certain sounds at all. Under the rating criteria, the examination results constitute Level I hearing in both ears. As noted above, the Board has determined that service connection for left ear hearing loss is warranted. When both ears are considered together, the result is a noncompensable or 0 percent disability evaluation. Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The Board acknowledges the Veteran's contentions regarding his difficulty hearing, however, the audiology examination yielded results warranting a noncompensable rating throughout the appeal period. Thus, while the Board has considered the Veteran's assertions as to worsening hearing loss, the Board must accord greater weight to the objective clinical findings that continue to show that the Veteran's hearing remains in the range of a noncompensable hearing loss under the Rating Schedule. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court held that 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. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the VA examiner noted that the functional impact of the Veteran's hearing loss was that the Veteran has difficulty hearing. However, the Veteran has noncompensable hearing loss. The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss. However, as was explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record. See Lendenmann. 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; 38 C.F.R. § 4.1. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's 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. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a compensable rating. REASONS FOR REMAND 1. Service connection for a right shoulder disability is remanded. Between his first two periods of active duty service, in 2001, the Veteran apparently dislocated his right shoulder. He subsequently was injured when he fell during service in 2003 from the cab of a truck to the ground (12-15 foot drop) and landed on some rocks. He maintains that he reinjured his knees (both knees are service-connected) as well as his right shoulder, hips, and feet at that time. A November 2003 medical report noted that the right shoulder had been reinjured in the fall. During his next period of service, in April 2004, the Veteran was knocked down by the blast explosion when two mortars landed nearby. The Veteran reported he again had shoulder pain after that incident. On a post-service VA examination in April 2005, he exhibited full range of motion, but had anterior tenderness of the shoulder. In September 2008, VA clinical records show that the Veteran reported the mortar incident and right shoulder pain. A prior right shoulder prominent acromioclavicular (AC) clavicle from previous right shoulder dislocation was noted. Thereafter, a Grade II AC separation and right shoulder arthropathy were noted. February 2009 records reflect a diagnosis of right shoulder arthralgia. An April 2009 VA examination revealed right-sided trapezius pain. The Board finds that medical clarification is needed with regard to whether the preexisting AC disability was aggravated during service. 2. Service connection for a bilateral hip disability is remanded. 3. Service connection for a bilateral foot disability is remanded. The medical records reflect that the Veteran has repeatedly reported that he injured both hips and feet when he fell from a vehicle during active duty service in 2003. He testified to the same at his hearing. In addition, the Veteran testified that he is seeking service connection on both a direct basis and as secondary to service-connected back and knee disabilities. January 2017 records show right hip complaints after he had fallen. The Board finds that medical clarification is needed on whether there is current disability related to service or service-connected disabilities. 4. Service connection for vertigo is remanded. 5. Service connection for a respiratory disability is remanded. As noted, service connection was denied for vertigo as part of a right ear condition. A September 2013 rating decision granted service connection for right ear sensorineural hearing loss which was previously claimed as residuals of right ear acoustic trauma with vertigo, ear popping, and sensitivity to temperature and humidity. Service connection for vertigo was not separately granted. The Veteran claims that he has vertigo and a respiratory disorder due to Balad burn pits in Iraq. The most current VA examination shows that the Veteran has vertigo and shortness of breath (SOB). He does not have a diagnosed respiratory disorder, other than OSA. A VA examiner opined that exposure to fire pits may cause respiratory conditions. In addition, it was asserted that vertigo is a current manifestation of the Veteran's TBI. The Board finds that medical clarification is needed. 6. Service connection for IBS/Bowel disorder is remanded. A June 2009 VA examination noted that the Veteran had experienced episodes of diarrhea since his period of service in 2003. The diagnosis was chronic diarrhea. The Veteran reported the same history on an April 2013 examination. The examiner indicated that the Veteran had recurrent loose stools, more likely than not related to IBS. A May 2013 VA examination again noted the same history and indicated that he had chronic diarrhea. The October 2017 GERD examination also noted that the Veteran had diarrhea. At his Board hearing, the Veteran testified that his chronic diarrhea/bowel disorder is related to his service-connected low back disability which causes loss of bowel control. Additional development of the medical evidence is necessary. 7. Increased rating for service-connected right knee mild tricompartmental degenerative changes is remanded. 8. Increased rating for meniscus impairment of the right knee associated with mild tricompartmental degenerative changes is remanded. An August 2004 rating decision granted service connection for arthritis, right knee is granted with an evaluation of 10 percent effective December 21, 1999 under Diagnostic Code 5260, which was discontinued February 19, 2003 due to the Veteran's return to active duty, then 10 percent from April 28, 2004. In May 2005, service connection for right knee subluxation with torn meniscus was granted with an evaluation of 20 percent effective April 28, 2004 under Diagnostic Code 5257. A January 2017 rating decision granted a temporary evaluation of 100 percent effective October 30, 2013 based on surgical or other treatment necessitating convalescence. A 20 percent evaluation was assigned effective January 1, 2014 as the termination of the convalescence period. Thus, the Veteran is service-connected for two right knee disabilities and assigned separate disability ratings. At his Board hearing, the Veteran testified that his overall right knee disability has worsened. A contemporaneous medical examination is in order. 9. Increased rating for service-connected left knee disability is remanded. The Veteran testified that his left knee disability has worsened in severity following a left knee replacement which was performed by a private Medicare physician. Accordingly, the pertinent records should be obtained and his left knee should be reexamined. 10. Increased rating for PTSD, Depressive Disorder, with anxiety, panic, TBI and sleep disturbance is remanded. 11. Entitlement to a separate rating for residuals of TBI is remanded. The Veteran was afforded a separate 10 percent rating for TBI until September 14, 2016 when the separate rating was discontinued and rated in conjunction with the psychiatric disability as 50 percent disabling (increased from 30 percent which was in effect prior to September 14, 2016. The Veteran testified that his psychiatric symptoms are of greater severity and frequency than currently rated. He also indicated that he has separate TBI symptoms such as seizure or seizure type symptoms as well as vertigo. Further examination is warranted. 12. Increased rating for migraine headaches is remanded. The Veteran testified to migraine headache symptoms of greater severity and frequency than is represented by his current 30 percent rating. As such, he should be afforded a current examination. 13. Increased rating for cervical strain with IVDS is remanded. The Veteran testified to increased and additional symptoms including neurological impairment which is not currently represented by the 20 percent rating. As such, he should be afforded a current examination. 14. Entitlement to an earlier permanent and total rating is remanded. A December 2017 rating decision determined that the Veteran had a permanent and total rating in conjunction with the claim for Chapter 35 educational assistance benefits. The effective date assigned was September 14, 2016. The Veteran has submitted a timely notice of disagreement. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. The Veteran should be sent a statement of the case as to the issue of entitlement to an effective date prior to September 14, 2016 for a permanent and total rating in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects the appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. 2. After securing the appropriate medical release, obtain and associate with the record copies of all clinical records of the Veteran's left knee replacement procedure and treatment. The AOJ must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. All development efforts should be associated with the record 3. Schedule the Veteran for a VA examination or telehealth examination to determine the nature and etiology of any current right shoulder disability, bilateral hip, and bilateral foot disabilities. If an examination is not conducted, a medical opinion should still be obtained. The examiner should provide an opinion as to the following questions: (a.) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a right shoulder defect, infirmity, or disorder that preexisted any period of military service; please identify with specificity any evidence that supports this finding. (b.) If there is clear and unmistakable evidence that the Veteran had a preexisting right shoulder defect, infirmity, or disorder at the time of a service entrance, is there evidence that the Veteran's preexisting right shoulder disorder increased in severity (worsened) in service. The examiner should address his 2001 AC separation. (c.) If the preexisting right shoulder defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the right shoulder disorder; please identify with specificity any evidence that supports this finding. (d.) If the examiner determines that the Veteran did not have a right shoulder defect, infirmity, or disorder that preexisted a qualifying period of service, is it at least as likely as not that the Veteran currently has a right shoulder disorder that had its onset in, or is otherwise etiologically related, to a qualifying period of service, to include the Veteran's 2003 fall from a vehicle. (e.) The examiner should opine as to whether it is at least as likely as not that the Veteran currently has bilateral hip and bilateral feet disabilities that had their onset in, or are otherwise etiologically related, to a qualifying period of service, to include the Veteran's 2003 fall from a vehicle. (f.) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran any current bilateral hip and/or bilateral foot disabilities are proximately due to, the result of, or aggravated beyond the natural progression of the disorder by the service-connected knee or back disabilities. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Obtain a clarifying opinion or, if deemed necessary, schedule the Veteran for a VA Gulf War General Medical examination/telehealth examination by an appropriate clinician to determine the nature and etiology of Veteran's vertigo and shortness of breath (SOB). The examiner must address the following: (a.) Whether the vertigo and SOB symptoms can be ascribed to any known clinical diagnoses. As to each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during any period of the Veteran's active duty service or if each diagnosis is otherwise related to such service, to include as due to environmental exposures in Southwest Asia such as burn pits. (b.) If any of the Veteran's symptoms cannot be ascribed to any known clinical diagnosis, then specify whether each is an undiagnosed illness or medically unexplained chronic multisymptom illness as established by history, physical examination, and laboratory tests, that have either (i) existed for 6 months or more, or (ii) exhibited intermittent episodes of improvement and worsening over a 6-month period. (c.) The examiner should also opine if the Veteran's vertigo is part and parcel of the Veteran's service-connected right ear disability and/or is proximately due to, or the result of, or aggravated by the ear disability. The examiner should address the competent reports of the Veteran of having vertigo and SOB since service. 5. Obtain a clarifying opinion or, if deemed necessary, schedule the Veteran for a VA Gulf War General Medical examination/telehealth examination by an appropriate clinician to determine the nature and etiology of Veteran's IBS/chronic diarrhea. The examiner must address the following: (a.) Whether the IBS/chronic diarrhea it is at least as likely as not related to service, to include as due to environmental exposures in Southwest Asia such as burn pits. (b.) Whether the IBS/chronic diarrhea it is at least as likely as not a manifestation of the Veteran's low back disorder/claimed loss of bowel control from that disability; and whether the IBS/chronic diarrhea is proximately due to, the result of, or aggravated by the low back disability. The examiner should address the competent reports of the Veteran of his bowel symptoms. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD and depressive disorder, with anxiety, panic, TBI and sleep disturbance. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI alone to determine if a separate rating for residuals of TBI is warranted, apart from the service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. In evaluating the Veteran, the VA examiner should consider the three main areas of dysfunction listed in the rating criteria under 38 C.F.R. § 4.124a that may have resulted from the Veteran's TBI: cognitive, emotional/behavioral, and physical. The examiner should specifically address if the Veteran has seizures/seizure symptoms and vertigo related to his TBI, as asserted by the Veteran. 9. Schedule the Veteran for a VA examination or telehealth examination to determine the nature and extent of his service-connected migraine headaches. The examiner should indicate the severity and frequency of the migraine headaches. The examiner should indicate if they are prostrating, and if so, how frequently. The examiner should also indicate if the headaches are productive of severe economic inadaptability. The examiner should be specific as to the frequency of these types of headaches. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should specifically address the manifestations of any associated neurological component of his disability to assess whether separate ratings are warranted for upper extremity manifestations. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.