Citation Nr: 22015239 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-25 274 DATE: March 16, 2022 ORDER The issue of service connection for a left hand disability is dismissed. The issue of an initial rating higher than 10 percent for tinnitus is dismissed. The application to reopen the claim of service connection for bilateral hearing loss is granted. Service connection for hallux rigidus of the left great toe (left great toe disability) is granted. An effective date earlier than December 30, 2003, for the grant of service connection for lumbar spine degenerative disc disease (low back disability) is denied. An effective date earlier than January 10, 2012, for the grant of service connection for tinnitus is denied. An effective date earlier than February 28, 2008, for the grant of service connection for left upper extremity radiculopathy is denied. A compensable rating for hemorrhoids is denied. REMANDED The issue of service connection for bilateral hearing loss is remanded. The issue of a rating higher than 20 percent for lumbar spine degenerative disc disease (low back disability) is remanded. The issue of a rating higher than 20 percent for a cervical spine disc disease (cervical spine disability) is remanded. The issue of a rating higher than 20 percent for left upper extremity radiculopathy is remanded. The issue of a rating higher than 10 percent for cystic acne is remanded. FINDINGS OF FACT 1. During the October 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of service connection for a left hand disability and an initial rating higher than 10 percent for tinnitus. 2. In a February 1997 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 3. Evidence received since the February 1997 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 4. The Veteran's left great toe disability had its onset in service and has continued since. 5. There is no evidence of any unadjudicated formal or informal claim of service connection for a low back disability subsequent to the final February 1997 decision and prior to December 30, 2003. 6. A claim of service connection for tinnitus was received on January 10, 2012; there is no evidence of any unadjudicated formal or informal claim of service connection for tinnitus prior to that date. 7. The service connection claim for radiculopathy in the left upper extremity was part and parcel of the April 16, 2012, higher rating claim for a cervical spine disability; the Veteran's radiculopathy in the left upper extremity had its onset on February 28, 2008. 8. The Veteran's hemorrhoids have not been large, thrombotic, or irreducible, or associated with persistent bleeding, secondary anemia, or fissure. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal of the issue of service connection for a left hand disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a withdrawal of an appeal of the issue of an initial rating higher than 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The February 1997 rating decision denying the claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. The criteria to reopen a claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for service connection for a left great toe disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an effective date earlier than December 30, 2003, for the grant of service connection for a low back disability have not been met. 38 U.S.C. §§ 5110(a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156, 3.400, 20.302, 20.1103. 7. The criteria for an effective date earlier than January 10, 2012, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110(a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156, 3.400, 20.302, 20.1103. 8. The criteria for an effective date earlier than February 28, 2008, for the grant of service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155 (in effect prior to March 24, 2015), 3.400. 9. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code (DC) 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1977 to May 1985, and the Coast Guard from May 1985 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013, May 2014, June 2014, and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran presented testimony before the undersigned Veterans Law Judge with the issues on appeal, except the issue of service connection for the left great toe disability, as the issue was in a separate appeal stream and the Veteran did not elect to have a hearing on that issue. During the hearing, the Veteran's request for the record to be held open for an additional 90 days to allow him to submit additional evidence was granted. The 90 day period has concluded and additional evidence was not received. Also, during the hearing, the Veteran indicated that he waived Agency of Original Jurisdiction (AOJ) consideration of any evidence that had not been considered since the last SSOC. The verbal waiver provided at the October 2021 hearing was formally and clearly entered on the record at the time of the hearing. See 38 C.F.R. § 20.1304(c). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the October 2021 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of service connection for a left hand disability and an initial rating higher than 10 percent for tinnitus. "[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant validly withdrew his appeal orally must include a finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). 1. The issue of service connection for a left hand disability. 2. The issue of an initial rating higher than 10 percent for tinnitus. During the October 2021 Board hearing, the Veterans Law Judge explained the consequences of withdrawing the issues of service connection for a left hand disability and an initial rating higher than 10 percent for tinnitus. The Veteran confirmed that he wished to withdraw his appeal as to the issues of service connection for a left hand disability and an initial rating higher than 10 percent for tinnitus. Additionally, given the discussion during the Board hearing regarding the other claims on appeal, the Board finds that the Veteran understood the consequences of withdrawing the appeal as to the issues of service connection for a left hand disability and an initial rating higher than 10 percent for tinnitus. Moreover, the Board finds that the hearing transcript satisfies the written requirements of 38 C.F.R. § 19.55 concerning the withdrawal of the appeal for these issues. See Tomlin v. Brown, 5 Vet. App. 355 (1993). In light of the above, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of the issues, and they are dismissed. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. In a February 1997 rating decision, the RO denied service connection for bilateral hearing loss on the basis that the evidence did not show current bilateral hearing loss for VA purposes. Later that month, in a February 1997 notification letter, the Veteran received notice of the February 1997 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the February 1997 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The evidence at the time of the February 1997 rating decision consisted of the Veteran's service treatment records (STRs), which included an April 1995 separation report showing that he did not have bilateral hearing loss for VA purposes. In June 2012, the Veteran submitted an application to reopen his previously denied claim of service connection for bilateral hearing loss. Relevant evidence received after the February 1997 rating decision includes the October 2021 Board hearing transcript and VA treatment records. Specifically, during the October 2021 Board hearing, the Veteran testified that his hearing loss had progressively worsen over the years and that he required hearing aids, bilaterally. The Veteran's VA treatment records reflect that he was prescribed hearing aids. See VA treatment record (September 2020). In fact, the VA treatment provider indicated that the Veteran's "hearing has changed significantly since his last evaluation in 2014 when it was normal." Since the February 1997 rating decision, the October 2021 Board hearing transcript and VA treatment records have been associated with the record. The October 2021 Board hearing transcript and VA treatment records were not previously considered in the last prior final denial and such evidence relates to an unestablished fact (namely a current disability) necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Therefore, the criteria for reopening the claim of service connection for bilateral hearing loss have been met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a left great toe disability. The Veteran claims that his left great toe disability is due to his military service and that he has had left great toe pain in and since service. See, e.g., VA treatment record (August 2018). Specifically, he asserts that during service, he injured his left great toe in 1989 when he dropped a 45-pound weight on his left great big toe. See VA foot examination report (July 2020). For the following reasons, service connection for a left great toe disability is warranted. A July 2020 VA foot examination report shows a diagnosis of hallux rigidus of the left great toe. Therefore, the current disability element has been established. As to the in-service disease or injury element, an April 1989 STR reflects that the Veteran injured his left great toe when he dropped a 45-pound weight on his foot. The examining physician indicated that the Veteran's left great toe was swollen and that he had deceased ranges of motion; the physician assessed a soft tissue injury. Accordingly, the in-service disease or injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran's left great toe disability had its onset during his service or is related to his military service. See 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). The Veteran has asserted that he has experienced left great toe pain in and since service. See, e.g., VA treatment record (August 2018). Importantly, the Veteran, as a lay person, is competent to report left great toe pain in and since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). His statements, regarding experiencing left great toe pain in and since service, are credible and consistent with the evidence of record. For instance, throughout the appeal period, the Veteran reported to his VA treatment providers that he had left great toe pain since his in-service left great toe injury. See VA treatment record (August 2018) (where the Veteran reported to the treatment provider that he had left great toe pain for forty years after dropping a 45 pound weight on his foot and that he has had "pain since then"); VA treatment record (September 2018) (where the Veteran reported that he injured his left foot during service in 1989 and has had pain); see also Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons")). Additionally, in an October 2020 statement, the Veteran's spouse reported that she has known the Veteran since his military service. The Veteran's spouse also reported that she witnessed the Veteran's in-service complaints of left great toe pain in and since service. Specifically, the Veteran's spouse indicated that the Veteran had left great toe stiffness and pain in and since service. The Veteran's spouse is competent to report factually observable occurrences in service and the timing of the observable symptoms of a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence of record contains two negative VA opinions (dated in July 2020 and August 2020), from the same examiner, who found that the Veteran's left great toe disability is less likely than not related to his military service. The two negative VA opinions are afforded no probative value, as the examiner relied on the absence of left great toe treatment following the Veteran's service and did not address or consider his reports of left great toe pain in and since service or the Veteran's spouse's statement. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) ("the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service."). Also, the evidence of record contains one private positive opinion (dated in September 2020) that links the Veteran's left great toe disability to his in-service left great toe injury. While the September 2020 private opinion is somewhat probative as to whether the Veteran's left great toe disability is related to his in-service left great toe injury (as the opinion explained that the Veteran's in-service injury caused osteophytes due to damaged articular cartilage resulting in hallux rigids), the opinion is ultimately speculative. The September 2020 opinion is speculative because the private physician indicated that the opinion was based on "literature" but did not provide any citations to the literature. Also, the physician indicated the Veteran's left great toe disability was "at least 90% level of probability" due to his in-service injury. Regardless, the most component and probative evidence of record includes the Veteran's statements of left great toe pain and symptoms since his in-service left great toe injury; the statement from his spouse; and the Veteran's reports to his VA treatment providers that he has had left great toe pain in and since service. Therefore, the evidence of record establishes that the Veteran had left great toe pain and symptoms since in his in-service injury. Therefore, service connection for a left toe great disability is granted. Notably, the Veteran has also been diagnosed as having arthritis in the great left toe during the appeal period. See, e.g., VA foot examination report (July 2020). The Veteran's VA treatment records have not distinguished the symptoms associated with his hallux rigidus of the left great toe from those associated with his arthritis in the great left toe. As the Veteran will be compensated for all of his great left toe symptoms, the Board will not separately adjudicate a claim of service connection for arthritis in the great left toe. Mittleider v. West, 11 Vet. App. 181 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable and the regulations in effect prior to March 24, 2015, will be applied. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). While a pro se claimant's claim must identify the benefit sought, the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read. Shea v. Wilkie, 926 F.3d 1362, 1369 (Fed. Cir. 2019). An informal claim may be raised by language that points to records mentioning a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition. Id. at 1370. Where a claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under § 3.155(a). Id. However, a veteran's legally sufficient claim must provide information, even at a high level of generality, to identify the sickness, disease, or injury for which benefits are sought. Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020). 1. An effective date earlier than December 30, 2003, for the grant of service connection for a low back disability. The Veteran seeks an effective date earlier than December 30, 2003, for the grant of service connection for a low back disability. The Veteran and his representative have not provided any assertions as to why an effective date earlier than December 30, 2003, for the grant of service connection for a low back disability is warranted. The current effective date for the award of service connection for a low back disability is December 30, 2003, the date that the Veteran's application to reopen his previously denied service connection claim for a low back disability was received. Historically, in a February 1997, the RO initially denied the Veteran's claim of service connection for a low back disability (characterized by the RO as paralumbar spasms). In February 1997, the Veteran was notified of the February 1997 rating decision. He did not appeal the February 1997 decision within one year of its issuance, new and material evidence was not received within that year, and the February 1997 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. On December 30, 2003, the Veteran's application to reopen his previously denied service connection for a low back disability was received by the RO. In a September 2004 rating decision, the RO denied service connection for a low back disability, on the basis that new and material evidence had not been submitted since the February 1997 rating decision. The Veteran appealed that decision to the Board. See Statement of the Case (SOC) (April 2006); VA Form 9 (April 2006). In July 2011, the Board denied service connection for a low back disability. The Veteran appeal the July 2011 Board to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted a Joint Motion for Remand (Joint Motion), vacating the July 2011 Board decision and remanding it for action consistent with the terms of the Joint Motion. In October 2013, the Board granted service connection for a low back disability. In a November 2013 rating decision, the RO implemented the Board's October 2013 decision and granted service connection for a low back disability, effective December 30, 2003. The Veteran appealed the November 2013 rating decision to the Board. See SOC (April 2017); VA Form 9 (May 2017). The Board notes that in the Veteran's notice of disagreement to the November 2013 rating decision, the Veteran did not explicitly indicate that he disagreed with the effective date of the grant of service connection for a low back disability, but rather that he generally disagreed with the November 2013 rating decision. To this extent, in April 2017, the AOJ issued a SOC that included the issue of an effective date earlier than December 20, 2003, for the grant of service connection for a low back disability and the Veteran filed a timely substantive appeal to the April 2017 SOC. See, e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009). Between the February 1997 rating decision (and its contemporaneous notification letter) and December 30, 2003, that is, the day VA received the Veteran's application to reopen his service connection claim for a low back disability, there is no unadjudicated formal application to reopen the claim of service connection for nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. An effective date earlier than December 30, 2003, for the grant of service connection for a low back disability is denied. As the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. An effective date earlier than January 10, 2012, for the grant of service connection for tinnitus. The Veteran seeks an effective date earlier than January 10, 2012, for the grant of service connection for tinnitus. The Veteran and his representative have not provided any assertions as to why an effective date earlier than January 10, 2012, for the grant of service connection for tinnitus is warranted. For the following reasons, an effective date earlier than January 10, 2012, for the grant of service connection for tinnitus is not warranted. On January 10, 2012, the Veteran's claim of service connection for tinnitus was received. In a May 2014 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating, effective January 10, 2012. The Veteran timely appealed the May 2014 rating decision to the Board. There is no evidence that the Veteran submitted any formal or informal claim for service connection for tinnitus at any time prior to January 10, 2012. Additionally, there is no document dated prior to January 10, 2012, that identified a sickness, disease, or injury relating to tinnitus for which compensation was sought, even at a high level of generality, which is the test for evaluating the sufficiency of both formal and informal claim. See Sellers, 965 F.3d at, 1338. See also Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155 (a)). In sum, there is no evidence of any unadjudicated formal claim of service connection for tinnitus prior to January 10, 2012, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. An effective date earlier than January 10, 2012, for the grant of service connection for tinnitus is denied. In conclusion, the evidence is not in approximate balance and is persuasively against the Veteran's claim; thus, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021). 3. An effective date earlier than February 20, 2008, for the grant of service connection for left upper extremity radiculopathy. The Veteran seeks an effective date earlier than February 20, 2008, for the grant of service connection for left upper extremity radiculopathy. The Veteran and his representative have not provided any assertions as to why an effective date earlier than February 20, 2008, for the grant of service connection for left upper extremity radiculopathy is warranted. The service connection claim for radiculopathy in the left upper extremity was part and parcel of the April 16, 2012, higher rating claim for a cervical spine disability. Specifically, in an April 16, 2012, statement, the Veteran indicated that he was seeking a higher rating for his cervical spine disability. While the higher rating claim for a cervical spine disability was pending, the Veteran was afforded a VA cervical spine examination in April 2014. At the April 2014 VA examination, the examiner indicated that the Veteran had left upper extremity radiculopathy due to his service-connected cervical spine disability. In consideration of the Veteran's diagnosed radiculopathy in the left upper extremity associated with his cervical spine disability, the RO, in a May 2014 rating decision, granted service connection for left upper extremity radiculopathy and assigned a 20 percent rating, effective February 28, 2008. See 38 C.F.R. § 4.71a, (reflecting that general Rating Formula for Diseases and Injuries of the Spine, Note (1) provides that associated objective neurologic abnormalities, are to be evaluated separately, under an appropriate diagnostic code.) In the May 2014 rating decision, the RO reasoned that an effective date of February 28, 2008, for the grant of service connection for left upper extremity radiculopathy was warranted because that was the earliest diagnosis of left upper extremity radiculopathy. The May 2014 rating decision generally stated the Veteran filed a new claim for benefits that was received on January 10, 2012. The Board notes that increased rating claims for hemorrhoids and a skin disability, and service connection for bilateral hearing loss and tinnitus, were received on January 10, 2012. However, the Board is unable to find any evidence that a claim for an increased rating for the Veteran's cervical spine disability was received on January 10, 2012. Instead, the Veteran's claimed an increased rating for his cervical spine disability on April 16, 2012. The Board is unclear as to why the RO assigned an effective date of February 28, 2008, for the grant of service connection for left upper extremity radiculopathy. To this extent, the correct effective date for the grant of service connection for left upper extremity radiculopathy is the date of claim for a higher rating for a cervical spine (which is April 16, 2012), rather than February 28, 2008, because the date of claim (April 16, 2012,) was later than the date entitlement arose for left upper extremity radiculopathy. Prior to the Veteran's April 16, 2012, higher rating claim for a cervical spine disability, there was no pending higher rating claim for a cervical spine disability. For instance, prior to the April 16, 2012, higher rating claim for a cervical spine disability, a rating decision in September 2004 denied a higher rating for a cervical spine disability. The Veteran did not appeal the September 2004 rating decision and did not submit a higher rating claim for a cervical spine disability prior to the April 16, 2012, claim. While the Veteran appealed the initial rating for his low back disability in a November 2013 Notice of Disagreement, service connection for the Veteran's radiculopathy was granted as related to his cervical spine disability, not his low back disability. In this case, the evidence shows that the date entitlement arose for the upper left extremity radiculopathy occurred, at the earliest, on February 28, 2008, when the Veteran reported to his treatment provider that he had neck spasms and was then diagnosed as having mild cervical radiculopathy. See VA treatment record (February 2008). As indicated above, the Veteran did not submit a claim of service connection for left upper extremity radiculopathy, but rather the claim was part and parcel of the higher rating claim for a cervical spine disability on April 16, 2012. The Board will not disturb the RO's favorable finding of an effective date of February 28, 2008, for the grant of service connection for left upper extremity radiculopathy. Accordingly, an effective date earlier than February 28, 2008, for the grant of service connection for left upper extremity radiculopathy is denied. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). A compensable rating for hemorrhoids. The Veteran's hemorrhoids are rated as noncompensable under 38 C.F.R. § 4.114, DC 7336, as internal or external hemorrhoids. Under DC 7336, the following ratings apply: a noncompensable rating is assigned for mild or moderate hemorrhoid symptoms; a 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences; and a maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, DC 7336. The Veteran submitted an increased rating claim for hemorrhoids in January 2012. In April 2014, the Veteran was afforded a VA examination to assess the severity of his hemorrhoids. The Veteran reported that he had rectal pain, pruritus, and occasional bleeding. The examiner indicated that the Veteran denied physical examination of the rectal area. The examiner found that there were no scars associated with the Veteran's hemorrhoids and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner indicated that the Veteran had mild or moderate external hemorrhoids. The Veteran was diagnosed as having internal or external hemorrhoids. This disability did not impact his ability to work. In this case, the Veteran has not described symptoms such as large thrombotic or irreducible hemorrhoids, persistent bleeding, secondary anemia, or fissures. Additionally, the Veteran's treatment records and the April 2014 VA examination report do not describe any such symptomatology. The symptomatology described by the Veteran most closely approximates the criteria for a noncompensable (0 percent) rating under DC 7336, which contemplates, at most, moderate internal or external hemorrhoids. In sum, the criteria for a compensable rating for hemorrhoids have not been met. As such, a compensable rating for hemorrhoids is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.114, DC 7336. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss is remanded. The Veteran claims that his bilateral hearing loss is related to his military service and that he has had bilateral hearing loss in and since service. See Board hearing transcript (October 2021). The Veteran was last afforded a VA hearing loss examination in April 2014, at which time he did not have bilateral hearing loss for VA purposes. Since the April 2014 VA examination, the Veteran's statements and treatment records reflect that his bilateral hearing loss has worsened and that he may have hearing loss for VA purposes. Specifically, the Veteran's VA treatment records reflect that he was prescribed hearing aids. See VA treatment record (September 2020). Also, a September 2020 audiologist indicated that the Veteran's "hearing has changed significantly since his last evaluation in 2014 when it was normal." Notably, although a September 2020 VA audiology report was associated with the record, indicating that the Veteran had "mild to severe sensorineural hearing loss", the audiologist did not provide an interpretation of the auditory thresholds at each frequency or provide an opinion on etiology. Additionally, a lay statement from former service member A.S., who served with the Veteran, was received in March 2021 relating the hearing hazards and perceived lack of adequate hearing protection afforded to the Veteran during his service in Navy. In sum, the Board finds that a remand is necessary to schedule the Veteran for a VA examination to determine whether he has current bilateral hearing loss for VA purposes. 2. The issue of a rating higher than 20 percent for a low back disability is remanded. 3. The issue of a rating higher than 20 percent for a cervical spine disability is remanded. 4. The issue of a rating higher than 20 percent for left upper extremity radiculopathy is remanded. During the October 2021 Board hearing, the Veteran provided testimony indicating that his low back disability, cervical spine disability, and left upper extremity radiculopathy had worsened since his last VA spine examinations in April 2014 and peripheral neuropathy examination in July 2018. Specifically, during the hearing, the Veteran testified that he had increased pain in his low back and cervical spine upon any movements and that he had flare ups. He also indicated that he had constant radiculopathy symptoms in his extremities due to his service-connected low back and cervical spine disabilities. Notably, since the April 2014 VA examination, private disability benefit questionnaires (performed in July 2020) were associated with the record. The private disability benefit questionnaires are difficulty to read and do not provide estimated range of motion measurements during periods when the Veteran experienced flare ups and other symptoms. A May 2018 orthopedic treatment note submitted with the private neck DBQ indicates the Veteran has numbness in both arms that is from his neck. An X-ray of the right shoulder was performed, and the examiner noted the neck demonstrates decreased range of motion and reproduces his radicular symptoms. As such, a remand is necessary to afford the Veteran new VA examinations to determine the current severity of his service-connected low back disability, cervical spine disability, and left upper extremity radiculopathy. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). Additionally, upon remand, treatment records from October 2020 to present should be obtained, as the Veteran testified that he has sought VA treatment for his disabilities on appeal and the record reflects that treatment records have only been obtained through October 2020. 6. The issue of a rating higher than 10 percent for cystic acne is remanded. During the October 2021 Board hearing, the Veteran provided testimony indicating that his cystic acne had worsened since his last VA examination in June 2014. Specifically, during the hearing, the Veteran testified that he flare ups, pain, that he required gauze pads for his acne due to swelling and pus, and that his acne covered a large area of his body. Additionally, since the June 2014 VA examination, a private June 2019 examination report indicates that the Veteran had severe acne characterized by cystic lesions, abscesses, and scars. Accordingly, a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected cystic acne. See, e.g., Snuffer, 10 Vet. App. at 403. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to present. Afford the Veteran an opportunity to identify any private treatment records relevant to his neck, back and acne disabilities. If he responds, make sufficient attempts to obtain such records per 38 C.F.R. § 3.159 and document your efforts in the claims file. 2. Schedule the Veteran for an audiological examination to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The audiologist should conduct audiometric and speech discrimination (Maryland CNC) testing of the right and left ear. In addition, the examiner must consider the September 2020 VA audiogram, as well as the lay statement from a former service member A.S. relating the hearing hazards and perceived lack of adequate hearing protection afforded to the Veteran during his service in Navy (see documents received March 2021). 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected cervical spine disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left upper extremity radiculopathy. All necessary tests should be conducted. The claims file must be sent to the examiner for review. 6. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. The examiner must also address the May 2018 orthopedic treatment note that indicates the Veteran has numbness in both arms that is from his neck and that the neck demonstrates decreased range of motion and reproduces his radicular symptoms. All opinions must be supported by a detailed rationale. 7. Schedule the Veteran for a VA examination to determine the current severity of his service-connected cystic acne. All necessary tests should be conducted. The claims file must be sent to the examiner for review. (Continued on the next page) The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.