Citation Nr: A25035553 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231128-396125 DATE: April 17, 2025 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an initial disability rating of 40 percent for lumbosacral strain with intervertebral disc syndrome (IVDS) is granted. Entitlement to an earlier effective date of June 7, 2019 for the award of service connection for mixed anxiety and depressive disorder is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for bilateral plantar fasciitis is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for lumbosacral strain with IVDS is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for left lower extremity (LLE) peripheral neuropathy, femoral nerve is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for LLE peripheral neuropathy, sciatic nerve is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for right lower extremity (RLE) peripheral neuropathy, femoral nerve is granted. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for RLE peripheral neuropathy, sciatic nerve is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to an initial disability rating in excess of 40 percent for lumbosacral strain with IVDS is remanded. Entitlement to an initial disability rating in excess of 10 percent for LLE peripheral neuropathy, femoral nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for LLE peripheral neuropathy, sciatic nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for RLE peripheral neuropathy, femoral nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for RLE peripheral neuropathy, sciatic nerve is remanded. Entitlement to service connection for erectile dysfunction as secondary to service-connected lumbosacral strain with IVDS is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to in-service hazardous noise exposure. 2. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to in-service hazardous noise exposure. 3. The Veteran's lumbosacral strain symptomatology more nearly approximates forward flexion of the thoracolumbar spine to 30 degrees or less. 4. An August 2019 rating decision denied entitlement to service connection for depression/anxiety. A September 2019 rating decision denied entitlement to service connection for low back strain, and a November 2019 rating decision denied entitlement to service connection for a foot condition. The Veteran submitted a request for an extension of filing time limits concurrently with a February 2023 supplemental claim, which requested review of the August 2019, September 2019, and November 2019 rating decision. Good cause was shown for the late filing of the February 2023 supplemental claim as a result of the Novel Coronavirus (COVID-19) pandemic. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to an initial disability rating of 40 percent for lumbosacral strain with IVDS have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 4. The criteria for entitlement to an earlier effective date of June 7, 2019 for the award of service connection for mixed anxiety and depressive disorder have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 5. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 6. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for lumbosacral strain with IVDS have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 7. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for LLE peripheral neuropathy, femoral nerve have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 8. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for LLE peripheral neuropathy, sciatic nerve have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 9. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for RLE peripheral neuropathy, femoral nerve have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. 10. The criteria for entitlement to an earlier effective date of August 23, 2019 for the award of service connection for RLE peripheral neuropathy, sciatic nerve have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.109, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to September 1982 with additional service in the Army National Guard from September 1981 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2023 and October 2023 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 and October 2023 AOJ decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) 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 disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for an organic disease of the nervous system, if there is a current disability and it is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training (ACDUTRA) includes full-time duty in the Armed Forces performed by Reserves for training purposes and includes full-time duty performed by members of the National Guard of any State. Inactive duty training (INACDUTRA) generally means duty (other than full-time duty) prescribed for Reserves and duty (other than full-time duty) performed by a member of the National Guard of any State. 38 U.S.C. §§ 101(21), 101(23) 101(24); 38 C.F.R. §§ 3.6(a), (c), (d). The October 2023 rating decision made favorable findings that the Veteran had a current diagnosis of bilateral hearing loss and tinnitus and conceded noise exposure. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c). The Veteran's service treatment records are silent for any treatment, complaints, findings, or diagnoses of hearing loss. Several audiograms were performed during the Veteran's service. In a 1999 audiogram, at 1000 Hz there was a shift of 5 decibels in the left ear and at 4000 Hz a shift of 5 decibels in the right ear. For the remaining audiograms the Veteran's hearing either remained the same or showed improvement. The Veteran was afforded a VA examination in July 2019. He described the onset of his hearing loss as 2001 and the onset of his tinnitus as 2004-2005. The Veteran was not diagnosed with hearing loss. The examiner opined that the Veteran's hearing was within normal limits; therefore, it was less likely than not that his hearing loss was due to military noise exposure or acoustic trauma. The examiner opined that the Veteran's tinnitus was less likely than not a result of military noise exposure. The examiner noted that service treatment records indicated no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation, which was evidence of no permanent auditory damage on active duty. There was no complaint of tinnitus in service treatment records or at separation. The examiner noted that although excessive noise exposure on active duty was conceded and tinnitus was reported during the examination, there was no nexus of auditory damage on active duty to relate the Veteran's report of tinnitus to military noise exposure. In a May 2023 opinion, the VA examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by the indicated toxic exposure risk activities (TERA) after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all TERAs of the Veteran. The examiner noted that the Veteran has a history of noise exposure due to his military occupational specialty (MOS), but no toxin exposures were noted and he has no ILER. The examiner noted that medical literature shows that hearing loss is caused by advancing age, loud noise exposure, hereditary, certain medical conditions, etc. The examiner noted that environmental toxic exposure is not known to cause hearing loss. The Veteran was afforded an additional VA examination in June 2023. He was diagnosed with bilateral sensorineural hearing loss. He reported the onset of his tinnitus as 1993. He reported that he began being aware of his tinnitus following deployment to Guatemala and sleeping near generator noise. In a June 2023 opinion, the VA examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or the result of military service. The examiner noted that although noise exposure is conceded and the Veteran's MOS had a high probability of hazardous noise exposure, the Veteran's service treatment records were negative for hearing loss or significant threshold shifts for the active-duty service period. The examiner noted that no hearing loss was noted for the active-duty service period or post-service hearing evaluation up to 2019. The examiner opined that the Veteran's tinnitus was less likely than not associated with his hearing loss because the Veteran reported the onset of his tinnitus when his hearing was normal. The examiner opined that the Veteran's tinnitus was less likely than not a result of military noise exposure. The examiner noted that although noise exposure was conceded, it is not evidence of tinnitus. Service treatment records indicated no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation, which is evidence of no permanent auditory damage on active duty. The examiner noted that there was no complaint of tinnitus in service treatment records or at separation. The examiner opined that though excessive noise exposure on active duty was conceded and tinnitus was reported during the examination, there was no nexus of auditory damage on active duty to relate the current report of tinnitus to military noise exposure. An additional VA medical opinion was provided in October 2023. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by the indicated TERA after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all TERAs of the Veteran. The examiner noted the July 2019, May 2023, and June 2023 VA medical opinions. The examiner also noted that the Veteran's TERA memorandum shows a history of noise exposure to his MOS. There was no evidence of exposure to toxin noted in the individual longitudinal exposure record (ILER) entries. The examiner stated that medical literature shows that hearing loss and tinnitus are caused by advancing age, loud noise exposure, hereditary, certain medical conditions, etc. The examiner noted that environmental toxin exposure is known to cause hearing loss and tinnitus, but the Veteran did not have significant TERA exposures to increase his risk of hearing loss or tinnitus. The examiner noted that the Veteran reported that his tinnitus started in 2005. The examiner opined that since tinnitus associated with noise exposure is immediate in onset, and since the Veteran's tinnitus did not start until 23 years after leaving service, it is less likely than not that the Veteran's tinnitus is caused by military noise exposure. The Board finds the VA opinions highly probative. The examiners considered the Veteran's medical history and statements, and the opinions contained thorough rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Further, there are no contrary medical opinions of record. Additionally, the evidence of record does not demonstrate that the Veteran's hearing loss manifested to a compensable degree within one year of discharge from active-duty service in 1982. The Veteran was afforded several audiograms while in National Guard service. The Veteran's in-service audiograms show that his hearing was normal in National Guard service. The Veteran's hearing loss did not rise to the level of a disability for VA purposes until the June 2023 VA examination, several decades after his separation from active-duty service. Indeed, the Veteran's hearing was normal at the July 2019 VA examination. This evidence supports a finding that the Veteran's hearing loss had not manifested to a compensable degree within one year of his separation from service. Further, the evidence of record does not show, nor does the Veteran assert that his tinnitus began during his active-duty service and has continued since that time. In the July 2019 VA examination the Veteran reported the onset of his tinnitus as 2004-2005, which is not a period of ACDUTRA, INACDUTRA, or active-duty service for the Veteran. Alternatively, during the June 2023 VA examination he reported that his tinnitus had its onset in 1993. The Veteran had ACDUTRA from February 1993 to March 1993 in Guatemala. Even if the Board were to resolve doubt in favor of the Veteran and find that his tinnitus had its onset in 1993, presumptive service connection is not warranted. The Veteran did not have 90 days of continuous service in Guatemala. Thus, the provisions of 38 C.F.R § 3.309 (a) are not for application for this period of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). 3. Entitlement to an initial disability rating of 40 percent for lumbosacral strain with IVDS. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Veteran's lumbosacral strain is currently rated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Per Note (1) of the General Rating Formula, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Per Note (2), normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined 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 cervical 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. Per Note (5) of the General Rating Formula, 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 one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Additionally, for purposes of assigning a higher rating, evidence of the functional equivalent of ankylosis (immobility of a joint, or complete limitation of motion) during a flare-up, can meet the requirement of establishing ankylosis under the General Rating Formula. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). The Veteran underwent a VA examination in August 2023. The Veteran reported severe flare-ups that occur all day several days a week. He described the flare-ups as increased pain and stiffness, with worse radiating pain in his legs. He described functional impairment during flares as having a hard time standing and walking and mostly having to stay sitting. The Veteran described functional loss or impairment as his back issues affecting his ability to walk and balance and ability to have erections. He stated that he cannot stand very long because of the pain, and he has fallen several times and stumbles often when he walks. The examiner noted that initial range of motion testing could not be performed due to the Veteran's reports of severe pain and worsening of pain. Passive range of motion testing could not be performed because the Veteran was medically contraindicated. There was evidence of pain with weight bearing, non weight bearing, and on rest/non-movement that caused functional loss. Pain inhibited his ability to stand, walk, and move. No range of motion testing was provided for repeated use over time. The examiner noted that an estimate could not be provided because he was unable to obtain a baseline range of motion. The examiner noted that the Veteran was being examined during a flare-up, but range of motion testing could not be provided because the Veteran was currently having a flare of pain and could not stand without help from his wife. The examiner noted that the Veteran was unable to do a baseline range of motion and was very limited due to pain. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups. The Veteran had localized tenderness and muscle spasms that did not result in abnormal gait or spinal contour. The Veteran had guarding that resulted in abnormal gait or abnormal spinal contour. The Veteran had an antalgic gait. He started with a cane and had to be changed to a wheelchair before getting to the exam room. The examiner noted that the Veteran had difficulty standing, walking, and some intermittent weakness and gait instability of the bilateral lower extremities that increase fall risk. No ankylosis was noted. The Veteran had IVDS but did not experience any episodes that required bed rest prescribed by a physician. The Veteran required occasional use of a wheelchair and regular use of a cane. The Veteran reported use of a cane at home when he walks short distances. Based on reported symptomatology and reported functional impairment during flare-ups, and after affording the Veteran the benefit of the doubt, an initial 40 percent rating is warranted for the Veteran's lumbosacral strain. Although range of motion testing could not be performed, the Veteran experienced severe flare-ups of the spine. Indeed, the Veteran was experiencing a flare-up at the time of the VA examination. The examiner noted that the Veteran was very limited due to pain. The Veteran reported functional loss and impairment as his back condition affecting his ability to walk, balance, have erections, and stand for long periods of time. He has also fallen on numerous occasions and often stumbles when he walks. The Veteran is competent to report the symptoms associated with his service-connected back disability. The Board has no reason to challenge the credibility of the Veteran's contentions regarding his symptoms. Accordingly, based on reported symptomatology and reported functional impairment during flare-ups, and after affording the Veteran the benefit of the doubt, the Board finds an initial 40 percent rating is warranted for the Veteran's lumbosacral strain with IVDS. Earlier Effective Dates The Veteran contends that he is entitled to an earlier effective date for his service-connected plantar fasciitis, psychiatric, lumbosacral strain, and peripheral neuropathy conditions due to the COVID-19 extension. See November 2023 VA Form 10182. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). Pursuant to 38 C.F.R. § 3.109, time limits within which claimants are required to act to perfect a claim or contest a VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant must be taken concurrent with or prior to the filing of the request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. On March 13, 2020, the President declared the COVID-19 pandemic a national emergency, effective March 1, 2020. In April 2020, VA issued guidance on the financial relief actions and time limit extensions it would be providing Veterans given this national emergency. Although claimants were able to continue to file claims for compensations by mail, fax, or online, for those unable to file a claim due to the COVID-19 pandemic, VA was able to grant time limit extension requests and postpone final actions on a claim "provided good cause is shown for the delay. VA has determined that delays due to COVID-19 constitute good cause." See VBA Policy Letter 20-02 (Novel Coronavirus (COVID-19)) Financial Relief Actions and Time Limit Extensions. The letter provided instructions for how a claimant should request such an extension, including that claimants should note the request on their filing submission or attach the request as a separate document. 4. Entitlement to an earlier effective date of June 7, 2019 for the award of service connection for mixed anxiety and depressive disorder. In a June 2019 VA Form 21-526EZ the Veteran requested service connection for depression/anxiety. In an August 2019 rating decision, the AOJ denied entitlement to service connection for depression/anxiety. In August 2022 the Veteran submitted a VA Form 21-0966 intent to file. In February 2023 the Veteran submitted a supplemental claim seeking service connection for depression/anxiety. The Veteran requested to "please apply all COVID-related extension/tolling to the one year period." In a September 2023 rating decision, the AOJ granted entitlement to service connection for mixed anxiety and depressive disorder, effective August 13, 2022, the date of receipt of the intent to file. The Board is not bound by VA manuals, circulars, or policy letters, such as VBA Policy Letter 20-02. 38 C.F.R. § 20.105. However, in this case, the Board finds that the request for extension of the time limit to file a supplemental claim, filed concurrently with the February 2023 supplemental claim, was submitted in accordance with the authority provided under 38 C.F.R. § 3.109(b), and contains good cause for late filing, as outlined in Policy Letter 20-02. Therefore, the February 2023 supplemental claim was timely, and the Veteran has continuously pursued his claim. Accordingly, entitlement to an effective date of June 7, 2019 for mixed anxiety and depressive disorder is warranted. 5. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for bilateral plantar fasciitis. 6. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for lumbosacral strain with IVDS. 7. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for LLE peripheral neuropathy, femoral nerve. 8. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for LLE peripheral neuropathy, sciatic nerve. 9. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for RLE peripheral neuropathy, femoral nerve. 10. Entitlement to an earlier effective date of August 23, 2019 for the award of service connection for RLE peripheral neuropathy, sciatic nerve. In a March 2008 rating decision the Veteran was denied entitlement to service connection for a low back strain and bilateral pes planus (claimed as foot condition). In a June 2019 VA Form 21-526EZ the Veteran requested service connection for plantar fasciitis and a lower lumbar strain. In a June 2019 letter, regarding the plantar fasciitis and lumbar strain claims, VA notified the Veteran that he had to file a request to review these claims on the proper form. The letter stated that no further action would be taken until VA received the Veteran's completed form. In July 2019 the Veteran submitted a VA Form 20-0966 higher-level review request listing the issues of plantar fasciitis and lumbar strain. In July 2019 VA notified the Veteran that the claims for plantar fasciitis and lumbar strain must be filed using a VA Form 20-0995 supplemental claim. The letter stated that no further action would be taken until VA received the Veteran's completed form. In August 2019 the Veteran submitted a supplemental claim seeking entitlement to service connection for plantar fasciitis and lumbar strain. In a September 2019 rating decision, the AOJ denied entitlement to service connection for bilateral pes planus (claimed as foot condition) and low back strain because the evidence submitted was not new and material. In September 2019 the Veteran submitted another supplemental claim requesting service connection for plantar fasciitis. In a November 2019 rating decision, the AOJ denied entitlement to service connection for plantar fasciitis In August 2022 the Veteran submitted a VA Form 21-0966 Intent to File. In February 2023 the Veteran submitted a supplemental claim seeking service connection for a bilateral foot condition, low back disability, and radiculopathy. The Veteran requested to "please apply all COVID-related extension/tolling to the one year period." In a September 2023 rating decision, the AOJ granted entitlement to service connection for plantar fasciitis, lumbosacral strain, and peripheral neuropathy conditions effective August 13, 2022, the date of receipt of the intent to file. Here, upon receipt of the June 2019 VA Form 21-526EZ VA notified the Veteran that he needed to submit the proper form before any further action could be taken on his claim. In this notification letter, VA provided options to the Veteran based on his situation. In July 2019, the Veteran submitted a higher-level review request, which was the incorrect form. In a July 2019 letter, VA notified the Veteran that he must submit a supplemental claim before any further action would be taken on his claim. On August 23, 2019, the Veteran submitted the supplemental claim. For supplemental claims "received more than one year" from a notice of decision the effective date can be "[no] earlier than the date of receipt of the supplemental claim." See 38 U.S.C. § 5110 (a)(3); 38 C.F.R. § 3.2500 (h)(2). Finding good cause for the late filing of the February 2023 supplemental claim due to COVID-19, the Board finds the Veteran has continuously pursued his claims of entitlement to service connection for plantar fasciitis and lumbosacral strain. However, because these claims were previously denied in a March 2008 rating decision, more than one year prior to receipt of the August 2019 supplemental claim, the effective date can be no earlier than the date of receipt of the August 2019 supplemental claim. The Veteran's lower extremity peripheral neuropathy conditions were granted as associated with his service-connected lumbosacral strain. Accordingly, an effective date of August 23, 2019, for the award of service connection for the Veteran's service-connected peripheral neuropathy conditions is warranted. In sum, an effective date of August 23, 2019, but no earlier, for the award of service connection for the Veteran's service-connected plantar fasciitis, lumbosacral strain, and peripheral neuropathy conditions is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus. A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not "noted" at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). The probative evidence of record indicates that the Veteran underwent an enlistment examination prior to entrance into the period of service in question. A June 1982 service treatment record notes a physical inspection, and no disqualifying defects or communicable diseases were noted. However, the Veteran's enlistment examination is unavailable. Therefore, with respect to the Veteran's bilateral pes planus, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a Veteran's entrance examination has been lost or destroyed while in VA custody)). Because the presumption of attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. See also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran was afforded VA examinations in November 2019 and August 2023. In these examinations the examiners noted that the Veteran's pes planus was congenital. Based on the above, the Board finds that the Veteran's bilateral pes planus existed prior to service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). In a June 1982 service treatment record the Veteran complained of feet pain on the bottom of his feet and heels. The clinician noted possible pes planus. In June 1991 the Veteran reported complaints of feet pain for the past ten years. Pes planus was noted bilaterally. In a March 1994 and February 1999 report of medical history the Veteran marked "yes" to foot trouble. In a November 2003 report of medical history he marked "yes" to foot trouble and reported that he experienced pain in both feet when he stood. In a November 2003 report of medical examination the clinician noted that the Veteran had mild symptomatic pes planus. In a November 2019 VA opinion, the examiner opined that the Veteran's pes planus was less likely than not incurred in or caused by service. The examiner explained that according to the Veteran and his service treatment records the Veteran had congenital pes planus, but his feet were asymptomatic until service. In a February 2023 statement, the Veteran reported that he immediately started having trouble with his feet when he began basic training. He reported that after a few weeks of running, marching all day, and standing long periods in combat boots the heels of his feet hurt and his ankles began swelling along with pain on the bottom of his feet. The Veteran reported that after a day or two he went to sick call and was taken to a hospital on base where he was seen and given something for pain and told to elevate his feet every change he had during the day and night, and he was sent back to duty. He reported that his feet problems continued, but he tolerated the pain and never went back to sick call again. He reported that during the 90s he was seen by a doctor who suggested surgery to alleviate the pain. He reported that in the mid-90s he was doing training and suffered severe exacerbation of both feet again. It was swollen around both ankles and he had such severe pain that when he got out of bed every morning his feet would hurt just to walk. He reported to sick call and was given a profile for no prolonged standing. In an August 2023 VA opinion, the examiner opined that the Veteran's pes planus was less likely than not caused by the Veteran's in service complaints of foot pain. The examiner noted that the Veteran has congenital pes planus. The examiner explained that because the condition is congenital military service did not cause it, but activities in service likely worsened it. In an October 2023 VA opinion, the examiner opined that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner noted that the August 2003 service treatment record demonstrated intermittent foot pain, which was treated with arch supports, had not necessitated prior surgical procedure, and did not cause weakened movement or disturbance of locomotion. The examiner noted that this fell within the projected natural history of the condition and did not represent aggravation beyond natural progression. The Board finds that additional remand is warranted. The November 2019 and August 2023 VA opinions are inadequate as they did not utilize the correct standard of review to address aggravation. The AOJ should have obtained a supplemental opinion before denying the claim, this is a predecisional duty to assist error. The Board finds the October 2023 VA opinion incomplete. The examiner addresses only the August 2003 service treatment record. The examiner does not address the other complains of bilateral feet pain in the Veteran's service treatment records or the Veteran's February 2023 lay statement regarding in-service trauma and chronicity of pain. The AOJ should have obtained an addendum opinion before denying the claim. This is a predecisional duty to assist error. Therefore, the Board finds that remand is warranted to obtain a VA opinion that addresses all the relevant evidence of record. 2. Entitlement to an initial disability rating in excess of 40 percent for lumbosacral strain with IVDS. In the August 2023 VA examination the Veteran reported taking NSAIDs and Tylenol for his back disability. He reported experiencing severe flare-ups that occur all day, several days a week. In Jones v. Shinseki, the U.S. Court of Appeals for Veterans Claims (Court) held that the Board must discount the beneficial effects of medication when the relevant rating criteria do not specifically contemplate the use of medication. Jones v. Shinseki, 23 Vet. App. 382 (2010). In Ingram v. Collins, the Court held that Jones applies in the evaluation of musculoskeletal disabilities where the relevant diagnostic code does not reference medication as a factor in evaluation. Ingram v. Collins, 2025 U.S. App. Vet. Claims LEXIS 327, at *19 (Mar. 12, 2025); __ Vet. App. __. DCs 5237 and 5243, which are applicable in this case, do not contemplate the ameliorative effects of medication. Determining the ameliorative effects of medication on the Veteran's lumbosacral strain disability is outside the Board's expertise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Unfortunately, the only available option to allow compliance with Ingram is to remand for a supplemental opinion. 38 C.F.R. § 20.802. Entitlement to an initial disability rating in excess of 10 percent for LLE peripheral neuropathy, femoral nerve. 3. Entitlement to an initial disability rating in excess of 10 percent for LLE peripheral neuropathy, sciatic nerve. 4. Entitlement to an initial disability rating in excess of 10 percent for RLE peripheral neuropathy, femoral nerve. 5. Entitlement to an initial disability rating in excess of 10 percent for RLE peripheral neuropathy, sciatic nerve. The Veteran attended a VA examination for his lumbosacral strain in August 2023. At the examination, the Veteran was found to have moderate constant pain of the RLE, moderate intermittent pain of the LLE, moderate paresthesias/dysesthesias of the LLE, severe paresthesias/dysesthesias of the RLE, severe numbness of the RLE, and mild numbness of the LLE. The examiner indicated that the femoral nerve and sciatic nerve were involved. The Veteran was then awarded a 10 percent rating for his peripheral neuropathy conditions based on these examination findings. However, the Veteran was not afforded a VA examination of the peripheral nerves, which would have required more extensive findings from the VA examiner regarding the extent of the Veteran's symptoms. Failure to provide such an examination is a pre-decisional duty to assist error and remand is required. 6. Entitlement to service connection for erectile dysfunction as secondary to service-connected lumbosacral strain with IVDS. In the August 2023 VA examination the Veteran reported that his service-connected back pain affects his ability to have erections. Therefore, the Board finds the theory of service connection for erectile dysfunction as secondary to his service-connected back disability was raised by the record prior to the issuance of the rating decision on appeal. However, no VA examination or opinion was obtained regarding this claim. This is a pre-decisional duty to assist error, and remand is warranted to obtain a VA opinion. 7. Entitlement to a TDIU. Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, a remand of the issue of entitlement to TDIU is required. No additional development is requested. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate examiner for the Veteran's bilateral pes planus. The entire claims file and a copy of this remand must be made available to the examiner for review. An additional examination is required only if deemed necessary by the examiner. The examiner is asked to opine as to the following: (a.) Whether the Veteran's pre-existing bilateral pes planus was clearly and unmistakably NOT aggravated beyond its natural progression by service. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following evidence: (b.) June 1982 and June 1991 service treatment records with complaints of feet pain. (c.) March 1994 and February 1999 reports of medical history with complaints of foot trouble (d.) November 2003 report of medical examination with notation of mild symptomatic pes planus. (e.) November 2003 report of medical history with reports of feet pain with standing. (f.) February 2023 lay statement from the Veteran regarding feet pain. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Obtain an addendum opinion from an appropriate examiner for the Veteran's lumbosacral strain condition. The entire claims file and a copy of this remand must be made available to the examiner for review. An additional examination is required only if deemed necessary by the examiner. The examiner is asked to complete the following: (a.) The examiner should estimate the current severity of the Veteran's disability without consideration of any ameliorative impact of medication taken for his disability. (b.) Full range of motion without consideration of ameliorative impact of medication must be estimated. It must be estimated for both active and passive motion, in weight bearing and non weight bearing. If the Veteran reported flare-ups, the examiner must assess any additional functional loss during flare-ups, including range of motion estimates. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a specific measurement without resorting to mere 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. 3. Schedule the Veteran for a peripheral nerves examination to determine the current severity of his left lower extremity and right lower extremity peripheral neuropathy disabilities. 4. Obtain an opinion from an appropriate examiner for the Veteran's claimed erectile dysfunction. An additional examination is required only if deemed necessary by the examiner. The examiner is asked to opine as to whether the Veteran's erectile dysfunction is: (a.) Caused by his service-connected back disability; or (b.) Aggravated by his service-connected back disability. The Board notes that causation and aggravation are separate concepts and must be addressed independently. A complete rationale must be provided for any opinion expressed. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dennis, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.