judge_norm: B T KNOPE

judge_role: Veterans Law Judge

disposition: denied

condition: neck

disposition: granted

condition: knee

condition: headache

condition: heart

condition: hypertension

benefit: dic

condition: back

condition: tinnitus

benefit: tdiu

text:
Citation Nr: 23007000
Decision Date: 02/03/23	Archive Date: 02/03/23

DOCKET NO. 18-37 987
DATE: February 3, 2023

ORDER

New and material evidence has not been submitted to reopen a previously denied and final claim of service connection of a neck disability, for purposes of accrued benefits; the petition to reopen the claim is denied.

New and material evidence has been submitted to reopen a previously denied and final claim of service connection of a left knee disability for purposes of accrued benefits; the petition to reopen the claim is granted.

Entitlement to service connection for sleep apnea for purposes of accrued benefits is granted.

Entitlement to service connection for an acquired psychiatric disorder, to include depression, for purposes of accrued benefits is denied.

Entitlement to service connection for a headache disorder for purposes of accrued benefits is denied.

Entitlement to service connection for atherosclerotic cardiovascular disease for purposes of accrued benefits is denied.

Entitlement to service connection for high blood pressure for purposes of accrued benefits is denied.

Entitlement to service connection for a common bile duct stint for purposes of accrued benefits is denied.

Entitlement to a 10 percent rating for bilateral hearing loss from June 17, 2013, to January 27, 2015, for purposes of accrued benefits is granted.

Entitlement to a rating in excess of 10 percent for bilateral hearing loss from January 27, 2015, to April 30, 2018, and a compensable rating, thereafter, for purposes of accrued benefits is denied.

Entitlement to an increased rating for posttraumatic arthritis, secondary to a back injury, presently rated as 10 percent disabling from June 17, 2013, to August 2, 2017, and as 20 percent from April 30, 2018, for purposes of accrued benefits is denied.

Entitlement to a 40 percent rating for posttraumatic arthritis, secondary to a back injury from October 1, 2017, to April 30, 2018, for purposes of accrued benefits is granted.

Entitlement to a separate 10 percent rating for radiculopathy of the right lower extremity, associated with posttraumatic arthritis of the thoracolumbar spine, for purposes of accrued benefits is granted from June 17, 2013.

Entitlement to a separate 10 percent rating for radiculopathy of the left lower extremity, associated with posttraumatic arthritis of the thoracolumbar spine, for purposes of accrued benefits is granted from June 17, 2013.

Entitlement to a rating in excess of 30 percent for residuals of a right knee injury with limitation of extension prior to June 6, 2016, for purposes of accrued benefits is denied.

Entitlement to a rating in excess of 10 percent for residuals of a right knee injury based on instability prior to June 6, 2016, for purposes of accrued benefits is denied.

Entitlement to a rating in excess of 30 percent for residuals of a right knee injury, status-post total knee arthroplasty, from August 1, 2017, for purposes of accrued benefits is denied.

Entitlement to an effective date prior to June 17, 2013, for the grant of a separate 30 percent rating based on limitation of extension of the right knee for purposes of accrued benefits is denied.

Entitlement to an effective date prior to June 17, 2013, for the grant of a 10 percent rating for arthritis of the thoracolumbar spine for purposes of accrued benefits is denied.

Entitlement to an effective date prior to June 6, 2016, for the grant of a temporary total evaluation for a right knee disability due to surgical convalescence for purposes of accrued benefits is denied.

REMANDED

Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded.

Entitlement to an initial compensable rating for a surgical scar associated with arthritis of the spine is remanded.

Entitlement to an effective date prior to June 17, 2013, for the grant of service connection of tinnitus is remanded.

Entitlement to an effective date prior to August 2, 2017, for the grant of service connection of a surgical scar associated with arthritis of the spine is remanded.

Entitlement to service connection for residuals of a left knee injury is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's claim of service connection for a neck disability was denied in a December 1991 rating decision which subsequently became final; the Veteran did not submit new and material evidence pertaining to a previously deficient criteria of that claim, specifically a nexus between the current neck disability and his in-service complaints of neck pain.

2. The Veteran's claim of service connection for a left knee disability was denied in a December 1991 rating decision which subsequently became final; since the time of that claim, the Veteran provided evidence of a current disability in the left knee.

3. Affording the benefit of the doubt, the Veteran's sleep apnea was at least as likely as not caused or aggravated by treatment required by his service-connected knee and back disabilities.

4. The Veteran did not have a currently diagnosed psychiatric disability during the appeal period.

5. The Veteran did not have a diagnosis of a headache disorder during the appeal period; he did not suffer any in-service incident, illness or injury to which such a disorder, if it existed, could be etiologically linked.

6. The Veteran's atherosclerotic cardiovascular disease did not manifest during service or within one year of separation from service; it was not otherwise related to any incident of active service.

7. The Veteran's hypertension did not manifest during service or within one year of separation from service; he did not suffer any incident, illness or injury to which his hypertension could be etiologically linked.

8. The Veteran did not have a bile duct stint or other bile duct-related disability; he did not suffer any in-service incident, illness or injury to which such a disability could be etiologically linked.

9. From June 17, 2013, to April 30, 2018, the evidence showed hearing level IV in the right ear and hearing level IV in the left ear; from April 30, 2018, the Veteran's bilateral hearing loss was manifested by hearing level I in the right ear and hearing level IV in the left ear.

10. From June 17, 2013, to August 2, 2017, the Veteran's low back disability was manifested by greater than 60 degrees of forward flexion of the spine and combined range of motion of the spine greater than 120 degrees; factors such as muscle spasm or guarding did not result in an abnormal spinal contour or abnormal gait; he did not have functional fixation or a diagnosis of ankylosis of the thoracolumbar spine.

11. From October 1, 2017, to April 30, 2018, the Veteran's low back disability was manifested by forward flexion of the spine limited to 30 degrees or less; he did not have functional fixation or a diagnosis of ankylosis of the thoracolumbar spine.

12. From April 30, 2018, the Veteran's low back disability was manifested by greater than 30 degrees, but not greater than 60 degrees of forward flexion of the spine; he did not have functional fixation or a diagnosis of ankylosis of the thoracolumbar spine.

13. During the period on appeal, the Veteran's right and left lower extremities experienced neurological symptoms associated with his low back disability, ultimately diagnosed as radiculopathy, which were mild in nature.

14. From June 17, 2013, to June 6, 2016, the Veteran's right knee disability resulted in no more than 20 degrees of limitation of extension, with flexion limited to more than 60 degrees.

15. From June 17, 2013, to June 6, 2016, the Veteran's right knee disability resulted in no more than mild anterior instability.

16. From August 1, 2017, the Veteran's right knee disability, status-post total knee arthroplasty, resulted in symptoms such as reduced range of motion, but not rising to a limitation that would warrant a rating in excess of 30 percent; he did not have ankylosis of the knee nor impairment of the tibia or fibula; his surgical residuals did not result in severe painful motion or weakness in the right knee.

17. The Veteran filed his claim for an increased rating for a right knee disability on June 17, 2013; all rating decisions issued prior to that claim were final, and the record did not include any evidence to suggest an earlier claim or entitlement to a higher rating for a right knee disability prior to that date.

18. The Veteran filed his claim for an increased rating for a thoracolumbar spine disability on June 17, 2013; all rating decisions issued prior to that claim were final, and the record did not include any evidence to suggest an earlier claim or entitlement to a higher rating for a low back disability prior to that date.

19. The Veteran underwent total knee arthroplasty of the right knee on June 6, 2016.

CONCLUSIONS OF LAW

1. New and material evidence having not been received, the claim of service connection of a low back disability remains closed. 38 U.S.C. �� 5108, 7104; 38 C.F.R. �� 3.104, 3.156, 20.302, 20.1103.

2. New and material evidence having been received; the claim of service connection of a left knee disability is reopened. 38 U.S.C. �� 5108, 7104; 38 C.F.R. �� 3.104, 3.156, 20.302, 20.1103.

3. The criteria for service connection for sleep apnea as secondary to his service-connected right knee and low back disabilities are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

4. The criteria for service connection for an acquired psychiatric disability, to include depression, are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

5. The criteria for service connection for a headache disorder, to include depression, are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

6.  The criteria for service connection for atherosclerotic cardiovascular disease are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

7. The criteria for service connection for hypertension are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

8. The criteria for service connection for a bile duct stint are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

9. The criteria for a 10 percent rating for bilateral hearing loss have been met from June 17, 2013, to April 30, 2018.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100.

10. The criteria for a compensable rating for bilateral hearing loss have been met from April 30, 2018.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100.

11. From June 17, 2013, to August 2, 2017, the criteria for a rating in excess of 10 percent for posttraumatic arthritis associated with a low back injury were not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DCs 5242, 5243.

12. From October 1, 2017, to April 30, 2018, the criteria for a 40 percent rating for posttraumatic arthritis associated with a low back injury were met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DCs 5242, 5243.

13. From April 30, 2018, the criteria for a rating in excess of 20 percent for posttraumatic arthritis associated with a low back injury were not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DCs 5242, 5243.

14. From June 17, 2013, the criteria for a separate 10 percent rating for radiculopathy of the right lower extremity, associated with posttraumatic arthritis of the thoracolumbar spine, were met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5242, 4.124a, DC 8520.

15. From June 17, 2013, the criteria for a separate 10 percent rating for radiculopathy of the left lower extremity, associated with posttraumatic arthritis of the thoracolumbar spine, were met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5242, 4.124a, DC 8520.

16. From June 17, 3013, to June 6, 2016, the criteria for a rating in excess of 30 percent for a right knee disability based on limitation of extension have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DCs 5260, 5261.

17. From June 17, 2013, to June 6, 2016, the criteria for a rating in excess of 10 percent for a right knee disability based on instability have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DC 5257.

18. From August 1, 2017, the criteria for a rating in excess of 30 percent for a right knee disability, status-post total knee arthroplasty, have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, DCs 5055, 5256, 5261, 5262.

19. The criteria for an effective date prior to June 17, 2013, for the grant of a separate 30 percent rating based on limitation of extension of the right knee have not been met. 38 U.S.C. � 5110; 38 C.F.R. � 3.400.

20. The criteria for an effective date prior to June 17, 2013, for the grant of a 10 percent rating for arthritis of the thoracolumbar spine have not been met. 38 U.S.C. � 5110; 38 C.F.R. � 3.400.

21. The criteria for an effective date prior to June 6, 2016, for the grant of a temporary total evaluation for a right knee disability due to surgical convalescence have not been met. 38 U.S.C. � 5110; 38 C.F.R. �� 3.400, 4.30.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1970 to November 1990.  The Veteran died in June 2019.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014, June 2015, October 2016, October 2017, and May 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

As a matter of procedure, the Veteran's claims were dismissed by the Board, due to his death, in a July 2019 decision.  That decision noted that the claims could be reopened for purposes of seeking accrued benefits by an eligible substitute appellant.  In May 2020, the appellant was granted substitute claimant status for purposes of entitlement to accrued benefits, and the appeal which was pending at the time of the Veteran's death was reopened.  It is now returned to the Board for further appellate review.

Although the issue of entitlement to TDIU was not addressed by the RO, it has been raised by the record and is part and parcel of the increased rating claims addressed herein.  Rice v. Shinseki, 22 Vet. App. 447 (2009)

New and Material Evidence

If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. � 5108; 38 C.F.R. � 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. �� 5108, 7104(b).

Under 38 C.F.R. � 3.104 (a), a decision of the rating agency shall be final and binding... as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. � 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. � 20.1103. A rating decision becomes final one year after its issuance, unless a Notice of Disagreement is filed. 38 C.F.R. � 20.302 (a). If a Notice of Disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. � 20.302 (b).

In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. � 3.156 (a). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998).

1. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection of a neck disability

The Veteran's claim of service connection of a neck disability was initially denied in a December 1991 rating decision.  At that time, the Veteran was noted to have reported neck pain during service in 1973.  At the time of his 1991 claim he was also found to have no physical abnormalities of the neck, although he did have pain beyond 30 degrees of lateralization.  However, the RO at that time concluded that the in-service complaints of neck pain were acute and transitory, and there was no medical nexus between the current neck complaints and his in-service reports of neck pain.

In connection with his claim to reopen the previously denied and final claim of service connection for a neck disability, the Veteran's records continue to show the 1973 complaints of neck pain and current complaints of neck pathology.  However, there is nothing in the record, to include complaints by the Veteran or any other lay statements or medical evidence implying any possible link between the current disability and the in-service neck pain.

The Board does acknowledge a June 2018 statement regarding an accident which occurred in 1986 in Sicily, in which he asserts he was thrown from a horse, resulting in a severe neck injury that required the use of a brace, and which has persisted to this day.  The Board has carefully reviewed the Veteran's claims file, to include his service treatment records, but finds no evidence if any such injury.  Notably, at separation from service, the Veteran reported multiple other injuries, including his 1986 knee injury during a motorcycle accident, a low back injury, and the neck injury discussed above, which occurred in the early 1970s.  When the Veteran was evaluated in connection with his 1991 claim he did not report such an injury to the examiner.  Upon review of the evidence, the only indication that such an injury ever occurred during service is the Veteran's June 2018 statement, which was given over 30 years after the injury allegedly occurred.

As a lay person, the Veteran was competent to report that of which he had first-hand knowledge.  Layno v. Brown, 6 Vet. App. 465, 471 (1994).  However, once basic competency is met, the Board must consider the credibility of that evidence.  Factors to consider when assessing the credibility of lay statements include facial plausibility, internal consistency, consistency with other evidence, self-interest, bias, bad character, malingering, and lay statements made during treatment.  See Caluza v. Brown, 7 Vet. App. 498 (1995). Other factors include direct personal knowledge or experience, erroneous recollection, time of creation of evidence, validity of statistical data, and combat or non-combat situation.

In this case, there is nothing in the record to support that such a neck injury ever occurred.  The Veteran did not report this injury at his separation examination.  He did not report his injury at his initial service-connection examination shortly after separation from service.  The earliest evidence of such an injury ever occurring is the statement itself given in 2018.  Given the fact that the only evidence of such an injury was created over 30 years after the injury supposedly occurred and given the fact that the Veteran never reported it during treatment in the interim between his claim and the injury allegedly occurring and given the Veteran's self-interest in the outcome of this appeal, the Board does not find his statement to be credible to establish that such an even occurred during service.  Because that event cannot be conceded, there is no basis to find that the duty to assist has been triggered in this matter.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Thus, this statement, while new, is not material to this matter.

Thus, the Veteran did not provide evidence which was both new and material, and the claim must remain closed.  The Board does not have jurisdiction to review the substantive portion of the claim.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

2. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection of a left knee disability

Prior to his death, the Veteran sought service connection of a left knee disability.  Although the RO has previously found adequate evidence to reopen the claim, the question of new and material evidence is jurisdictional, and the Board must nonetheless address the question prior to assessing the underlying substantive appeal.  The Board finds that the claim should be reopened.

The Veteran's claim of service connection for a left knee disability was denied in a December 1991 rating decision.  The Veteran did not subsequently submit any additional evidence in support of that claim, and it became final.  At that time, it was denied because there was no evidence of a current disability (indeed, the rating decision specifies that there was no indication that the left knee had been examined, although the Veteran denied any pathology affecting the knee) and no evidence of any link to service.

Since the time of the original denial, the Veteran has been afforded two VA examinations.  Although no specific diagnosis has been given, both show evidence of painful motion in the left knee resulting in limitation of motion of the knee.  To the extent that this indicates a current disability, this evidence is new in that it was not of record at the time of the 1991 decision, and material as it addresses a previously deficient criterion of service connection.  Therefore, the claim should be reopened.  To this limited extent, the appeal is granted.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. � 1110; 38 C.F.R. �� 3.303, 3.304.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay 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 disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In addition, certain chronic diseases, including cardiovascular-renal disease and arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C. �� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  Regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim.

A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. � 3.310.

3. Entitlement to service connection for sleep apnea

Prior to his death, the Veteran sought service connection of sleep apnea.  The Board finds that the claim should be granted.

Initially, the Board acknowledges a diagnosis of sleep apnea during the appeal period.  The Veteran's claim has, to date, been denied by the RO based on a lack of in-service complaints or diagnosis of sleep apnea, nor any other in-service incident, illness or injury to which any present sleep apnea could be etiologically linked.

In support of his claim, shortly before his death, the Veteran submitted a private examination report which confirmed the current diagnosis of sleep apnea.  After a physical examination of the Veteran and a review of the evidence of record, the Veteran submitted an opinion by a private physician which opined in favor of causation and permanent aggravation of the Veteran's sleep apnea by his service-connected right knee and low back disabilities.  Specifically, the examiner noted use of various potent analgesic and opiate medications prescribed to treat the Veteran's pain associated with those disabilities.  The examiner then stated that opiates bind to various receptors within the nervous system and elsewhere in the body, resulting in increased respiratory pauses, irregular breathing, and shallow breaths.  Further the medical literature has reported abnormal sleep architecture during the process of opioid induction, maintenance, and withdrawal, and they are a known respiratory depressant which causes abnormal ventilator responses to hypercapnia and hypoxia.  Additionally, analgesics exerts is action my affecting opioid receptors, and includes side effects such as nausea, vomiting, dry mouth, and sedation.  Sedative drugs suppress the central nervous system which is typically accompanied by a reduction in carbon dioxide responsiveness, with loss if airway and control and respiratory depression as the most common serious adverse effects associated with sedative drugs.

The Board finds this opinion persuasive.  It was given by a medical doctor in contemplation of the complete medical record and history and supported its conclusions with a thorough discussion and citation to medical treatise evidence.  Notably, VA has not obtained any medical examination or opinion in support of this appeal.  There is no other evidence or opinions of record to contradict those of the private physician.

Given that the evidence of record at this time supports a causal and aggravating nexus between the currently service-connected disabilities and sleep apnea, the Board finds that the claim should be granted.

4. Entitlement to service connection for an acquired psychiatric disorder

Prior to his death, the Veteran claimed service connection of a psychiatric condition, claimed as depression.  The Board finds that the claim must be denied.

The Board does not find any evidence of any current psychiatric disability during the claims period.  The Veteran's contemporary treatment records did not document any psychiatric condition.  The evidence submitted by the Veteran after the issuance of the statement of the case did not suggest that he had a psychiatric disability during the appeal period.  Evidence submitted by the Veteran in June 2019, shortly before his death noted normal neurocognitive and psychiatric symptoms.

Despite this lack of any evidence of a diagnosis, the Veteran was afforded a VA psychiatric examination in April 2018.  During the examination, the Veteran denied any current psychiatric symptoms.  He did not exhibit any behavioral signs of mania or psychosis.  He explicitly denied anxiety.  When questioned regarding depressed mood, the Veteran stated "I'd be pretty hard pressed to get depressed about anything.  I shuck it off."  He denied anhedonia and endorsed good concentration and self-esteem.  He denied symptoms such as suicidal ideation or self-harm.  he was alert and oriented.  A self-administered forced choice questionnaire was not suggested of feigning symptoms.  He did endorse some sleep issues and lack of energy, which were attributed to his sleep apnea diagnosis, and not to any psychiatric issues.  The examiner concluded that the results of the evaluation were not consistent with any DSM-5 diagnosis, a thus, there was no basis upon which to give a diagnosis of any acquired psychiatric disability.  Because there was no evidence of any current diagnosis, the examiner opined that a psychiatric disability was not related to service.

The Board finds this examination report to be persuasive as to the question of the Veteran having a diagnosed psychiatric condition during active service.  It was provided by a clinical psychologist and applied the facts of this specific case to the accepted diagnostic criteria for psychiatric conditions.  It supported the non-diagnosis with an explanation.

Ultimately, because there is no evidence that the Veteran suffered from a psychiatric disability during the appeal period, the Board must conclude that the claim fails the primary criterion of service connection.  Because there is no evidence of a current disability, there is no disability upon which to grant service-connection, and the claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

5. Entitlement to service connection for a headache disorder

Prior to his death, the Veteran sought service connection for a headache disorder.  The Board finds that the claim should be denied.

Initially, the Board does not find evidence of a currently diagnosed headache or migraine disability.  The claims file does not support such a diagnosis, and the appeal fails the primary criterion of service connection, namely, a present disability.

Additionally, the Board has reviewed the evidence of record and finds that there is no evidence in the service treatment records to support any in-service incident, illness or injury to which a current headache disorder could be etiologically linked.  Indeed, there is no evidence of any complaints of headaches or any head-related injury or illness during service.  At separation from service, the Veteran was found to have normal neurological functioning and he denied any headache issues.  Thus, the claim also fails the secondary criterion of service connection.

The Board notes that the Veteran was not afforded a VA examination in connection with his claim.  VA's duty to assist only requires it to provide an examination in situation where there is evidence of a current diagnosis, evidence of an in-service incident, illness or injury, and an indication that the two may be related. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence does not suggest that the Veteran had a current headache disability during the claim period, nor that he suffered any in-service incident, illness or injury, VA's duty to assist did not require it to provide an examination.

The Board recognizes the Veteran's own firmly held belief that he had a headache disorder which was related to service but finds this of limited to no probative value in assessing the appeal.  While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of any headaches he may have experienced, especially in light of the fact that the evidence fails to demonstrate the onset of any headache or head-related symptoms during active service.  See id.

In sum, the Veteran did not have a diagnosed headache disability during the appeal period, and he did not suffer any in-service incident, illness or injury to which a current headache disorder could be etiologically linked.  Thus, the claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

6. Entitlement to service connection for atherosclerotic cardiovascular disease

7. Entitlement to service connection for high blood pressure

Prior to his death, the Veteran sought service connection of atherosclerotic cardiovascular disease (claimed as a heart attack) and high blood pressure.  The Board finds that the claim should be denied.

Initially, the Board recognizes a diagnosis of atherosclerotic heart disease and hypertension as diagnosed in 2015 and 2018 VA examinations.  This satisfies the primary criterion of service connection.

The evidence of record indicates that in 1982, the Veteran reported having pain or pressure in his chest, however, he denied having palpations or a pounding heart, nor any heart trouble at that time.  X-rays taken at that time showed a normal chest impression.  Upon separation from service, he denied having palpations, pounding heart, or any heart troubles.  An x-ray taken in 1990 was negative for any chest pathology.  A normal clinical evaluation of the heart was given upon separation.  Service treatment records do not show blood pressure readings which meet the diagnostic definition of that condition during active service.  See 38 C.F.R. � 4.104.  At his separation examination in August 1990, the Veteran denied high or low blood pressure and his blood pressure reading was recorded as 118/78.

There is no evidence of high blood pressure or a cardiovascular disease during active service or within one year of separation from service.  The first evidence of either does not appear in the record until many years after separation from service.  The Veteran has not explicitly attested to any symptoms starting in service with continuity to the present.  Thus, a continuity of symptoms is not established, nor is an incurrence to a compensable degree within the statutory presumptive period.

At a VA examination in May 2015, an examiner the Veteran denied any exposure to herbicide agents, to include service in Southeast Asia.  After a review of the record, the examiner stated that an opinion regarding the etiology of the Veteran's coronary arteriosclerosis could not be given without resort to speculation.

At a second examination in April 2018, the examiner diagnosed coronary artery disease with a history of heart attack and angioplasty, as well as atrial fibrillation.  After a review of the Veteran's medical history, the examiner stated that the current condition was less likely related to any incident of active service.  In support of this, the examiner noted no objective evidence of ischemic heart disease or coronary artery disease while on active duty.  Indeed, that diagnosis was not given until many years after service.  The only other condition was atrial fibrillation, which was due to the Veteran's hypertension, which also occurred after service.  The examiner further stated that the Veteran had a long history of smoking and many other risk factors for the development of coronary artery disease.  Thus, his current coronary artery disease was multifactorial but less likely due to any incident of active service.

The Board finds this opinion to be persuasive.  It was given by a medical specialist in contemplation of the complete medical record, to include the Veteran's own lay reports of symptomatology, and supported the conclusion with a reasoned explanation which applied the facts of this specific case to known medical principles.  The Board has reviewed the evidence but finds no medical evidence or opinion to refute this opinion.

The Board does acknowledge the Veteran's own firmly held belief before his death that his hypertension and heart disease were related to active service but finds this unpersuasive.  While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hypertension and heart disease, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of hypertension or heart disease during active service.  See id.

In sum, while the Veteran did have a diagnosis of hypertension, it did not manifest until many years after separation from service, and he did not suffer any incidents of hypertension during service to which his condition could be etiologically linked.  His diagnosed heart disease also did not manifest during active service or within one year of separation from service and was less likely than not related to any incident of active service.  Thus, the claims are denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

8. Entitlement to service connection for a common bile duct stint

Prior to his death, the Veteran sought service connection for a coming bile duct stint.  The Board finds that the claim should be denied.

Initially, the Board has reviewed the evidence and found nothing to suggest any type of bile duct disability or pathology.  Neither has the Veteran provided any specific lay statement or evidence attesting to this disability.

Further, the Board has reviewed the Veteran's claims file, to include his service treatment record and military personnel records and finds no evidence of any bile duct-related diagnoses or complaints in the record.  There was no diagnosis of or complaints pertaining to a bile duct issue during service.  At separation, the Veteran did not report any bile duct issues, and he was not found to have any upon examination.

In this matter, the Board finds that the claim fails the primary and secondary criteria of service connection.  The Board recognizes that the Veteran was not afforded a VA examination in connection with his claim, but because there is no evidence of a current diagnosis or an in-service incident, illness or injury, the duty to assist does not require such an examination at this time.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board does acknowledge the Veteran's firmly held belief before his death that he had a bile duct condition that was related to service but finds this of limited to no probative value.  While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  In the present case, the Veteran was a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding a bile duct condition, especially in light of the fact that the evidence fails to demonstrate a current disability or an in-service incident, illness or injury.  See id

In sum, the Board finds that the Veteran did not have a bile duct stint or other bile duct-related disability, and he did not suffer any in-service incident, illness or injury to which such a disability could be etiologically linked, if it existed.  As such, the claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

Increased Rating

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. � 4.1.  Where, as in the case of the issues on appeal in this matter, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required.  See Fenderson v. West, 12 Vet. App. 119 (1999).  "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned."  38 C.F.R. � 4.7.

9. Entitlement to an increased rating for bilateral hearing loss, presently rated as noncompensable prior to January 27, 2015, as 10 percent disabling from January 27, 2015, to April 30, 2018, and as noncompensable thereafter

From to January 27, 2015, to April 30, 2018, the Veteran's bilateral hearing loss was assigned a 10 percent rating.  For the periods prior to and after that period, he was assigned a noncompensable rating for his hearing loss.  Prior to his death, he sought an increased rating for that disability.  The Board finds that a 10 percent rating should be granted form June 17, 2013, the date of the claim for an increase, through January 27, 2015, but that increased ratings for the remaining periods on appeal should not be granted.

The Veteran's hearing loss is rated pursuant to Diagnostic Code (DC) 6100.  Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations).   The evaluations assigned for hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. � 4.85, DC 6100, as set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned.  See, id.

VA regulations further provide that in cases of exceptional hearing loss, when the pure-tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, and each ear is to be evaluated separately.  38 C.F.R. � 4.86(a) (2013).  When the pure-tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.  38 C.F.R. � 4.86(b).

The Veteran was afforded a VA examination in connection with his increased rating claim in May 2014.  At that time, the examiner stated that the Veteran could not be tested, noting that after repeated attempts and reinstruction, the test results were not reliable and not suitable for rating purposes.  Specifically, the test results were strongly suggestive of a non-organic hearing loss or hearing loss component.  There was variability in responses to pure-tones of up to 20 decibels with retest (more than could be expected from test-retest variability), SRTs were in fair to poor agreement with PTAs (with SRTs better than expected given the pure-tone results), and the very poor speech recognition scores obtained were inconsistent with observed communication abilities.  Normal hearing was diagnosed bilaterally.  The Veteran stated at that time that his hearing impacted his conditions of daily life in that he frequently had to ask "huh?" and had difficulty with conversations with people.  He also stated he talked loudly and had trouble watching television at normal levels.

A new examination was afforded the Veteran in January 2015.  At that time, audiometric testing showed the following puretone thresholds in decibels:

			HERTZ

	1000	2000	3000	4000	Average

RIGHT	40	50	70	75	59

LEFT	35	65	70	75	61

Maryland CNC testing showed speech discrimination scores of 80 percent in both the right and left ear.

Application of the above audiogram results to Table VI reveals level IV hearing acuity in the left ear and level IV hearing in the right ear. 38 C.F.R. � 4.85, Table VI. The examination report did not demonstrate findings that puretone thresholds were 55 decibels or more at each of the four specified frequencies or that puretone thresholds were 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. As such, consideration of the Veteran's hearing loss using Table VIA for cases of exceptional hearing loss would not be warranted for the left ear.

Level IV hearing in the poorer ear and Level IV hearing in the better ear results in a 10 percent rating in accordance with the standards found in Table VII. 38 C.F.R. � 4.85, Table VII. Thus, a 10 percent rating is the maximum statutory rating available using the available audiogram results from the January 2015 examination.

On April 30, 2018, the Veteran was afforded a new VA examination.  At that time, audiometric testing showed the following puretone thresholds in decibels:

			HERTZ

	1000	2000	3000	4000	Average

RIGHT	30	50	65	80	56

LEFT	25	60	50	80	54

Maryland CNC testing showed speech discrimination scores of 96 percent in the right ear and 80 percent in the left ear.

Application of the above audiogram results to Table VI reveals level IV hearing acuity in the left ear and level I hearing in the right ear. 38 C.F.R. � 4.85, Table VI. The examination report did not demonstrate findings that puretone thresholds were 55 decibels or more at each of the four specified frequencies or that puretone thresholds were 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. As such, consideration of the Veteran's hearing loss using Table VIA for cases of exceptional hearing loss would not be warranted for the left ear.

Level IV hearing in the poorer ear and Level I hearing in the better ear results in a noncompensable rating in accordance with the standards found in Table VII. 38 C.F.R. � 4.85, Table VII. Thus, a noncompensable rating is the maximum statutory rating available using the available audiogram results from the April 2018 examination.

Based on the above evidence, the Board will grant the increased rating of 10 percent from June 17, 2013, the date the Veteran filed his claim for an increased rating for bilateral hearing loss.  In this regard, while the May 2014 examination did not find evidence of increased hearing loss (or any hearing loss based on data that was not adequate to rate the disability), the examiner did not give a specific reason for why the required testing could not be accomplished.  There is no specific assertion that the Veteran did not comply with testing requirements.  Rather, the examiner attributed the poor data to a non-organic hearing loss/hearing loss component, without explanation as to what that might constitute.  The Board also notes that the examiner stated that acoustic reflexes could not be tested due to inability to maintain a seal, which indicates a possible issue with the testing equipment.  Ultimately, there is no indication that the poor examination results were the fault of the Veteran, and therefore, the Board cannot use them to assess the severity of his hearing loss.

The first evidence in the record indicating an increased rating was warranted was the January 2015 examination report, which was conducted after the May 2014 examination report was deemed inadequate.  The Board also notes that the Veteran has submitted a private audiogram from July 2012 which also shows elevated levels of hearing loss similar to those shown in the January 2015 audiogram (the Board notes that, although that private audiogram provides puretone threshold testing results, it does not include Maryland CNC word recognition testing scores, and thus cannot be used to rate the Veteran's hearing loss).  As such, the Board will afford the benefit of the doubt and assign the increased 10 percent rating, which is supported by the January 2015 examination report, from the date of the Veteran's claim for an increased disability rating.  As to a rating in excess of 10 percent, the evidence shows that, based on the audiometric data, the maximum available rating is 10 percent, and a rating in excess of that is not supported.

As to the rating from April 2018, the Board does not find that the evidence suggests an increased rating is warranted.  From that date, the Veteran's right ear hearing loss showed word recognition scores of 96 percent, which raised the overall rating to level I hearing loss.  Thus, there is no basis upon which to grant a compensable rating for that disability.  As such, the Board does not find that a compensable rating was warranted from April 2018.

 In sum, affording the benefit of the doubt, the Board will grant a 10 percent rating from June 17, 2013, the date of the Veteran's claim for an increased rating for hearing loss, but finds that a rating in excess of that 10 percent is not supported.  From April 30, 2018, a compensable rating is not for application.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

10. Entitlement to an increased rating for posttraumatic arthritis, secondary to a back injury, presently rated as 10 percent disabling from June 17, 2013, to August 2, 2017, and from October 1, 2017, to April 30, 2018, and as 20 percent from April 30, 2018

11. Entitlement to a separate compensable rating for right lower extremity radiculopathy, associated with a thoracolumbar spine disability

12. Entitlement to a separate compensable rating for left lower extremity radiculopathy, associated with a thoracolumbar spine disability

From June 17, 2013, to August 2, 2017, and from October 1, 2017, to April 30, 2018, the Veteran's thoracolumbar spine disability was rated as 10 percent disabling.  From April 30, 2018, his disability was rated as 20 percent disabling.  Prior to his death, he sought higher ratings.  For the reasons addressed below, the Board finds that increased ratings should not be granted, but that separate ratings for right and left lower extremity radiculopathy should be assigned as part of the spine rating.

The Veteran's low back disability was rated pursuant to DC 5242, which rated for degenerative arthritis of the spine and applied the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (it is noted that although the rating criteria for the spine was recently amended, See 85 Fed. Reg. 76,453 (November 30, 2020), however, as the Veteran passed away in 2019, prior to the adoption of the amended rating criteria, the Board will evaluate the claim pursuant to the original rating criteria).

Pursuant to the General Rating Formula, a 10 percent rating is to be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. � 4.71a, DC 5242.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id.

An alternative option for rating disabilities of the spine is based on the presence of intervertebral disc disease (IVDS) with incapacitating episodes, when present.  Under the applicable rating criteria, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks in the prior 12 months.  a 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks in the past 12 months.  for a rating in excess of 20 percent, incapacitating episodes must have a total duration of 4 or more weeks during the prior 12 months.  38 C.F.R. � 4.71a, DC 5243.

When evaluating diseases of the spine, any neurological complications or abnormalities are to be rated separately under an appropriate diagnostic code.  38 C.F.R. � 4.71a, DC 5242, Note (1).

Neurological complications, to include radiculopathy or neuropathy affecting the lower sciatic nerve in the lower extremities, associated with diseases and injuries of the spine, are rated pursuant to DC 8520, which rates based on paralysis of the sciatic nerve.  A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve.  A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve.  A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve.  A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, which is described in the rating criteria as requiring signs of "marked muscular atrophy."  Finally, an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which is described as "the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of knee weakened or (very rarely) lost." 38 C.F.R. � 4.124a, DC 8520.

It is noted that, while the rating criteria based on "severe" incomplete paralysis and complete paralysis of the sciatic nerve includes descriptors of what is anticipated by such a finding, the criteria for "mild," "moderate," and "moderately severe" incomplete paralysis do not.  When such ratings are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. � 4.6.

The Veteran was afforded a VA examination in May 2014.  At that time, he reported low back pain that occurred daily, keeping him awake at night.  He denied flare-ups and low back or bowel/bladder radicular symptoms.  Forward flexion was to 70 degrees with combined range of motion of 150 degrees, with pain at the terminal points of motion.  No additional loss was found on repetitive use testing.  Functional loss included less movement than normal and pain on movement.  He did not have localized tenderness or pain to palpation of the joint or soft tissue of the spine.  He did not have muscle spasm.  He did not have guarding of the spine.  Muscle strength testing was normal.  He did not have any signs of muscle atrophy.  Reflexes were hypoactive bilaterally in the knees and ankles, and he showed normal sensory testing in the thighs, knees, and ankles, but decreased sensation in the feet and toes.  Straight leg testing was negative and the examiner did not diagnose radiculopathy.  There was no sign of ankylosis.  No other neurological abnormalities were identified.  He did not have IVDS.  He regularly used a cane to ambulate.  The examiner opined against a functional impact on his ability to work.  The examiner also stated the extent of functional losses during a period of flare, if they existed (it is noted that the Veteran denied flare-ups during the examination), or with repeated use over time, could not be estimated without resort to speculation.

The Veteran was afforded a new VA examination in May 2015.  At that time, he described low back pain occurring daily and keeping him up at night.  Flare-ups were described as pain at 7/10, (increased from 4/10), non-radiating in nature, when he sits for over 30 minutes.  Such a flare occurred during the examination.  Initial range of motion showed 70 degrees of forward flexion with a combined 160 degrees of motion, with pain at the terminal points of motion.  Although such pain was reported by the examiner as happening during a flare, and the examiner stated that the examination was medically consistent with the Veteran's description of losses with repeated use over time and during periods of flare, the examiner also stated that any further losses during such a period could not be given as such findings would result in speculation.  Localized tenderness was noted, but it did not result in abnormal gait or spinal contour.  There was no sign of muscle spasm or guarding.  Strength testing was normal.  No muscle atrophy was found.  Reflexes in the knees and ankles were absent bilaterally, however, sensory testing was normal and the straight leg raising test was negative.  No radiculopathy or ankylosis was identified or diagnosed.  No other neurological abnormalities were identified.  He did not have IVDS.  He used a brace to ambulate on his right knee, but it was not required for his spinal disability.  His condition did not affect his ability to work.

Evidence dated March 21, 2017, noted severe S1 and moderate to severe L-5 radiculopathy.

Evidence of record suggests that on August 2, 2017, the Veteran underwent surgery on his low back, and was discharged the following day to his home with an activity level of "light duty, non-strenuous."  He did not require immobilization or incapacitation.  Nonetheless, the Veteran was granted a temporary total rating of 100 percent from August 2, 2017, to October 1, 2017, due to surgical convalescence.  38 C.F.R. � 4.30.

Treatment records from November 2017 indicate worsening low back pain, alleviated with medication for short periods before returning.  Neurological testing that same month also showed acute ongoing denervation in the muscles sharing coming S1 root innervation with associated acute or ongoing denervation in the lumbosacral paraspinal muscles.  The examiner found this indicative of severe S1 radiculopathy and moderate to severe axonal motor polyneuropathy in the legs with bilateral leg weakness, and numbness.

In March 2019, the Veteran submitted a privately completed examination report dated December 12, 2017. At that time, the Veteran reported severe stabbing pain in his low back, leaving him unable to bend or walk due to his pain.  Forward flexion was to 30 degrees, with a combined range of motion of 90 degrees.  No change was reported on repetitive use testing.  Pain caused his functional losses.  There were no signs of localized tenderness.  Muscle spasm affected his gait, although spinal contour was normal.  Functionally, he had less movement than normal, pain on movement, and weakened movement.  Those factors further limited range of motion to 10 degrees of forward flexion and a combined 40 degrees of motion.  Strength testing was normal and there was no sign of muscle atrophy.  He did not have any ankylosis.  Reflexes in the bilateral knees and ankles were hypoactive, but not absent.  Sensory testing was normal bilaterally.  Straight leg testing was negative.  Radiculopathy was identified, with mild constant pain, dull pain, and numbness.  Intermittent pain was moderate, and there was no evidence of paresthesias and/or dysesthesias.  The examiner opined that the Veteran's radicular symptoms, which were the result of sciatic nerve involvement, were mild at most.  No other neurological disabilities were identified.  IVDS was present with incapacitating episodes of at least 6 weeks in the prior 12 months.  He occasionally used a brace and cane to ambulate.  Functionally, he could not bend, twist or walk more than 200 feet.  He could not lift more than 20 pounds.

On April 30, 2018, the Veteran was afforded a new VA examination in connection with his appeal.  The examiner noted a surgery in the prior year, which the Veteran reported did not work.  Flare-ups were reported a chronic lower back pain into his hips on both sides, preventing prolonged standing.  He stated he needed to lean on a shopping buggy to shop.  He denied actual functional loss regardless of repetitive use.  Forward flexion was limited to 45 degrees with a combined range of motion of 105 degrees.  He could not engage in heavy lifting and carrying, or prolonged standing or sitting.  Pain was noted on all movements.  He had some localized tenderness or pain on palpation.  He completed three repetitions without additional functional loss and the examination was neither medically consistent nor inconsistent with reports of loss during periods of repeated use over time.  Actual losses during a period of flare could not be estimated without speculation.  Although guarding and muscle spasm were noted, neither resulted in abnormal gait or spinal contour.  Muscle strength was normal on all movement, and he had no signs of atrophy.  Reflexes were normal bilaterally.  Sensory testing was normal with the exception of the foot and toes, where it was absent.  Straight leg raising test was negative bilaterally.  The examiner declined to diagnose radiculopathy and no ankylosis was found.  No other neurological abnormalities were identified.  IVDS was noted, but it had not required any periods of periods of bed rest in the prior 12 months.  He regularly used a cane to ambulate.  Functionally, the Veteran reported being unable to engage in prolonged sitting or standing.  He could not engage in heavy lifting.  He reported requiring nerve cauterization to assist with the pain.  Although he had some residuals status-post surgery on the L5-S1 vertebra, he had no objective evidence of radiculopathy.

Based on this evidence, the Board makes the following findings.  From the date of his initial claim for an increased rating in June 2013 to August 2, 2017, the date he underwent surgical treatment for his low back disability, the Board finds that a rating in excess of 10 percent is not warranted.  In this regard, the Veteran's range of motion was found to exceed 60 degrees of forward flexion and 120 degrees of combined motion, when accounting for periods of flare and repeated use over time.  Further, there was no evidence of IVDS upon which to base a higher rating.  Thus, the Board does not find that a rating based on functional loss in excess of 10 percent is for application.

From October 1, 2017, to April 3, 2018, the Board finds that a 40 percent rating should be granted.  In this regard, the Veteran underwent surgical intervention in August 2017, and there is indication that he suffered increased symptoms after that surgery.  During the period after his temporary total rating was lifted, the December 2017 private examination report shows that he had forward flexion of the thoracolumbar spine limited to 30 degrees or less, which is compensated by a 40 percent rating.  However, there was no sign of actual fixation of the spine, nor any diagnosis of ankylosis, and therefore a rating in excess of 40 percent based on functional loss is not supported.  The Board does note that the private examination report indicated the presence of IVDS resulting in 6 or more weeks of incapacitation but does not find that this evidence is adequate to assign a 60 percent rating under the rating criteria applicable to IVDS.  In this regard, despite finding so many weeks of incapacitating episodes, the examiner also found the Veteran generally able to ambulate (indeed, he only occasionally used a brace or a cane to do so).  Further, the Board notes that the Veteran has already been assigned a 100 percent rating based on incapacitation following his surgery in August of that year, which is the only period where convalescence is supported by the record, and the Board cannot attribute those six weeks of incapacitation to any other specific period of time during the prior year.  The Board further notes that the April 2018 examination report found no evidence of incapacitating episodes during the prior 12 months, which includes the period applicable to this examination report.  Thus, the Board will grant no more than a 40 percent rating based on limitation of motion.

Finally, from April 30, 2018, to the time of the Veteran's death, the Board does not find that a rating in excess of the 20 percent presently assigned is supported by the evidence.  In this regard, the April 2018 examination report showed no less than 45 degrees of forward flexion lost, which is supported by a maximum 20 percent rating.  There is no sign of fixation of the spine or a diagnosis of ankylosis in any of the affected vertebra.  Further, while IVDS was noted, the Veteran had not experienced any incapacitating episodes in the prior 12 months which would give rise to a rating under the IVDS criteria.  As such, the Board must deny a rating in excess of 20 percent during this period.

Finally, the Board does acknowledge that the Veteran's low back disability has resulted in neurological complications which should be rated separately from the low back which is rated based on actual functional loss.  Here, the Board notes that as early as May 2014, the Veteran was found to have lost sensation in his feet and toes, with loss of reflexes noted by May 2015, evidence of radicular issues with denervation by 2017.  The December 2017 private examination report also found evidence of radiculopathy which was generally mild in nature with only moderate intermittent pain, and the April 2018 examination report found radiculopathy resulting in decreased sensation in the toes and feet.  The Board finds that based on this, a 10 percent rating should be assigned for the entire period on appeal for each lower extremity due to neurological complications of the Veteran's low back disability.  Although some 2017 records note possible moderately severe to severe radiculopathy, those findings were based on imaging reports, and not based on the symptoms themselves.  Rather, the evidence generally shows symptoms associated with that radiculopathy as being sensory at most, which only some moderate pain noted in December 2017, which was intermittent and not constant.  When radicular involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. � 4.124a.  Thus, the Board will assign a 10 percent rating each for the right and left lower extremity for radicular symptoms of the Veteran's low back disability for the entire period on appeal.

In sum, the Board finds that increased ratings for the low back are generally not supported, and the increased rating claim is denied with the exception of the period between October 1, 2017, and April 30, 2018, when a 40 percent rating should be granted. See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.  However, for the entire period on appeal, a separate 10 percent rating should be assigned for the right lower extremity and left lower extremity each, due to radicular symptoms associated with the low back disability.  To this limited extent, the appeal is granted.

13. Entitlement to a rating in excess of 30 percent for a right knee injury with limited extension from June 17, 2013, to June 6, 2016

14. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury, based on instability, from June 17, 2013, to June 6, 2016

15. Entitlement to a rating in excess of 30 percent for residuals of a right knee injury, status-post total knee arthroplasty, from August 1, 2017

The Veteran's right knee disability is rated as 30 percent disabling based on limited extension, and separately rated as 10 percent disabling based on instability prior to June 6, 2016.  From August 1, 2017, his right knee disability was assigned a single 30 percent rating for residuals of a total knee arthroplasty.  Prior to his death, he sought higher ratings for that disability. The Board finds that the claims should be denied.

Initially, the Board notes that from June 6, 2016, to August 1, 2017, the Veteran was in receipt of a 100 percent rating for his right knee disability due to post-surgical convalescence, associated with a total knee arthroplasty.  See 38 C.F.R. � 4.30.  Therefore, for that period, there is no schedular basis upon which to grant a higher rating, and the Board will not address that period.

Prior to June 6, 2016, the Veteran's right knee was rated based on residuals of a knee injury manifested by limitation of extension, with a 30 percent rating, assigned pursuant to DC 5261.  He was also in receipt of a separate 10 percent rating based on recurrent subluxation or lateral instability, pursuant to DC 5257

When rating knee disabilities based on limitation of motion, a separate rating may be assigned for disabilities based on limitation of flexion as well as limitation of extension of the knee if both pathologies exist. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability).

It is noted that recent changes to the rating criteria applicable to the knee, particularly based on instability or subluxation, were instituted effective February 2021.  However, because the Veteran passed away prior to that date, the Board must evaluate his disabilities based on the original criteria.  See 85 Fed. Reg. 76,453 (November 30, 2020).

Pursuant to the rating criteria for a disability of the knee, a 30 percent rating is assigned for extension limited to 20 degrees.  Limitation of extension to 30 degrees is afforded a 40 percent rating.  Finally, a maximum 50 percent rating is assigned for extension limited to 45 degrees or more.  38 C.F.R. � 4.71a, DC 5261.

A noncompensable rating is assigned for knee disabilities limited to 60 degrees.  compensable ratings are assigned for flexion limited to 45 degrees or less 38 C.F.R. � 4.71a, DC 5260.

Prior to the updated rating criteria going into effect, slight recurrent subluxation or lateral instability was assigned a 10 percent rating.  A 20 percent rating was assigned for moderate recurrent subluxation or lateral instability.  Finally, a maximum 30 percent rating was assigned for severe recurrent subluxation or lateral instability.  38 C.F.R. � 4.71a, DC 5257.  Prior to February 2021, terms such as "mild," "moderate," and "severe" were not defined by the rating schedule; rather than applying a mechanical formula, VA was required to evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. � 4.6.

From June 6, 2016, to August 1, 2017, the Veteran was in receipt of a temporary total rating due to convalescence following total-knee arthroplasty.  From August 1, 2017, he was assigned a 30 percent rating pursuant to DC 5055, which rated for knee replacement (prosthesis).  Under the applicable rating criteria, prosthetic replacement of the knee joint was assigned a 100 percent rating for the year following implantation.  Thereafter, a minimum 30 percent rating is granted.  Intermediate degrees of residual weakness, pain or limitation of motion were to be rated by analogy under DCs 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (tibia or fibula impairment).  A maximum 60 percent rating was for application with chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. � 4.71a, DC 5055

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. � 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. � 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. � 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

The Veteran was afforded a VA examination in May 2014.  He described right knee pain aggravated by increased activity, which had been aggravated by a motor vehicle accident three years earlier, for which he did not seek surgical treatment.  He denied flare-ups of his right knee condition.  Initial range of motion showed 90 degrees of flexion with pain starting at 70 degrees.  Extension was limited to 20 degrees with pain at the terminal point.  No additional loss was observed with repetitive use testing.  Functionally, he had less movement than normal, pain on movement, swelling, deformity, instability of station, and disturbance of locomotion.  Pain was noted on palpation.  Muscle strength was normal on flexion and extension.  Joint stability testing showed 1+ (0-5 millimeters) of anterior instability, but normal posterior and medial-lateral instability.  There was no sign of patellar subluxation or dislocation.  He did not have any other additional conditions.  There was no sign of a meniscal condition.  He had not required joint replacement surgery.  He regularly used a cane to ambulate.  His condition did not impact his ability to work, and the examiner stated that additional functional limitations could not be estimated during flare-ups or with repeated use over time without resort to speculation.

A private record from February 2015 noted knee joint pain but did not provide range of motion or other findings.

Medical records from June 2016, around the time of his surgery showed a total knee arthroplasty was conducted.  Flexion was to 98 degrees and extension to 15 degrees.

The Veteran was afforded a new VA examination in April 2018.  At that time, the Veteran was noted to have had a total right knee arthroplasty several years earlier.  He stated he could not kneel, stoop or squat, and had issues with prolonged standing or walking.  He stated that flare-ups resulted in right leg cramps.  Flexion was limited to 115 degrees with complete extension to 0 degrees.  Pain was noted on extension with evidence of pain on weight bearing.  Localized tenderness was noted and described as muscle cramps.  There was no objective evidence of crepitus.  No additional loss was observed with repeated use testing, and the examination was neither consistent nor inconsistent with the Veteran's statements of functional loss with repeated use over time or during a period of flare.  Additional losses could not be estimated without resort to speculation during such a period.  He experienced disturbance of locomotion, interference with sitting and interference with standing.  Muscle strength was normal.  He did not have muscle atrophy.  There was no fixation of the joint or diagnosis of ankylosis.  Stability testing was normal, and no history of recurrent subluxation or lateral instability was noted.  There was no sign of effusion into the joint.  No other knee conditions, to include a meniscal condition were observed.  He regularly used a cane to ambulate.  Functionally, his condition prevented prolonged sitting and standing.  He stated he could drive, but he would need to pull over periodically to stretch his knee.

In support of his appeal, the Veteran submitted a functional capacity evaluation regarding his disabilities and their effect on his ability to work.  That report was undated but did refer to a status-post total knee arthroplasty, which means it at least post-dated his surgery in June 2016.  It found his knee prevented standing, walking and sitting more than 2 hours.  He could lift less than 10 pounds during an 8-hour workday.  His combined disability picture would result in 3 or more lost days per work per month, although it did not specify the knee alone.

Based on the available evidence, the Board does not find that increased ratings are warranted.  In this regard, prior to his surgery, the Veterans' right knee extension was limited to no more than 15 to 20 degrees, even when accounting for factors such as pain, weakness, and fatigability.  Thus, a rating in excess of 30 percent based on limitation of extension is not supported.  While he did show some evidence of limitation of flexion, it was not to 45 degrees or less, which would give rise to a compensable rating based on limitation of flexion.  Further, to the extent that he suffered instability of the knee, the only evidence of such instability showed less than 5mm of anterior instability with all other normal stability testing of record.  He did not endorse giving way or other ambulatory issues due to instability.  As such, the Board is satisfied that prior to his total knee replacement, he did not warrant a rating in excess of the 30 percent for limitation of extension and 10 percent for instability which was already in effect.

Likewise, following his surgery, the Board notes that the Veteran's range of motion actually increased and there was no evidence of any instability in the new joint.  Neither was there any evidence of ankylosis or impairment of the tibia or fibula.  While some symptoms continued to be present, they were not severe in severely painful, nor did they result in severe weakness.  Thus, there is no basis upon which to assign a rating in excess of the minimum evaluation in effect from August 1, 2017.

In sum, the Board finds that prior to June 6, 2016, the Veteran's right knee disability was manifested by symptoms indicative of no more than a 30 percent rating based on limitation of extension and a separate 10 percent rating based on mild instability of the knee.  From August 1, 2017, the Veteran's right knee, status-post total knee arthroplasty, did not result in severe residuals or compensable residuals affecting range of motion or the tibial or fibula, nor was there any evidence of ankylosis, and therefore, a rating in excess of 30 percent is not for application.  As such, the increased rating claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

Effective Dates

Generally, except as otherwise provided, 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 which the entitlement arose, whichever is later.  See 38 U.S.C. � 5110; 38 C.F.R. � 3.400.  The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. � 5110; 38 C.F.R. � 3.400(b)(2)(i).

16. Entitlement to an effective date prior to June 17, 2013, for the grant of a separate 30 percent rating based on limitation of extension of the right knee

17. Entitlement to an effective date prior to June 17, 2013, for the grant of a 10 percent rating for arthritis of the thoracolumbar spine

Prior to his death, the Veteran sought effective dates prior to June 17, 2013, for increased disability ratings that were assigned for his right knee and thoracolumbar spine disabilities.  The Board finds that the claims should be denied.

The Veteran was granted service connection of a right knee and low back disability in a December 1991 rating decision.  The Veteran did not contest the ratings assigned therein, and they became final.  In an October 1993 rating decision, his right knee disability was granted an increased rating.  In January 1995, a rating decision proposed to reduce the Veteran's right knee rating.  That rating was subsequently reduced in an April 2015 rating decision.  The Veteran did not appeal those decisions and they became final.  The Veteran again claimed an increased rating for his right knee in August 2010.  That claim was denied in a March 2011 rating decision.  The Veteran did not appeal that decision, nor did he submit additional evidence in support of that claim within one year of that decision, thus it also became final.

On June 17, 2013, the Veteran submitted his claim for increased rating for both the low back and the right knee, which resulted in the ratings presently on appeal.  This is the first indication of an intent to file after the prior rating decision addressing the knee became final in March 2012, and the prior rating decision addressing the low back became final in December 1991.  The Board has also carefully reviewed the evidence but finds nothing of record at the time of the claim to indicate an intent to file or that a higher rating was warranted.  Thus, the Board finds that the earliest possible effective date available for increased ratings for the right knee and low back is June 17, 2013, the date of the Veteran's claim for an increase.  Therefore, the claims are denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

18. Entitlement to an effective date prior to June 6, 2016, for the grant of a temporary total evaluation for a right knee disability due to surgical convalescence

Prior to his death, the Veteran contested the effective date assigned for a temporary total evaluation of the right knee due to surgical convalescence.  The Board finds that the claim should be denied.

As addressed above, effective June 6, 2016, the Veteran's right knee disability was reclassified under Diagnostic Code 5055, due to total knee arthroplasty.  From June 6, 2016, to August 1, 2017, he was granted a 100 percent rating due to surgical convalescence.  That reclassification and temporary total rating were assigned during the pendency of the increased rating claim for the right knee disability.

A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to 38 C.F.R. � 3.105(e). Such total rating will be followed by appropriate schedular evaluations. When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under this section. 38 C.F.R. � 4.30.

In this case, the evidence establishes that the Veteran underwent a total knee replacement surgery on June 6, 2016.  This is the earliest evidence that the Veteran underwent surgery for his right knee, and there is no evidence of a right knee surgery requiring convalescence prior to that date.  Thus, the earliest effective date for a temporary total rating for the right knee is June 6, 2016, the date when he first became entitled to that benefit.  As such, the claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

REASONS FOR REMAND

1. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded.

2. Entitlement to an initial compensable rating for a surgical scar associated with arthritis of the spine is remanded.

3. Entitlement to an effective date prior to June 17, 2013, for the grant of service connection of tinnitus is remanded.

4. Entitlement to an effective date prior to August 2, 2017, for the grant of service connection of a surgical scar associated with arthritis of the spine is remanded.

On June 26, 2018, prior to his death, the Veteran filed a notice of disagreement with a June 6, 2018, rating decision, specifically contesting the ratings and effective dates assigned for the grants of service connection for tinnitus and a scar associated with the Veteran's service-connected low back disability.  However, the RO did not issue a statement of the case prior to the Veteran's death.

Despite the Veteran passing away prior to the RO issuing a statement of the case with regard to these two issues, the filing of a notice of disagreement give the Board jurisdiction over the claims.  See Manlincon v. West, 12 Vet. App. 238 (1999). As the appellant has substituted as the claimant on all claims pending before the Board at the time of the Veteran's death, the Board must remand these four issues so that a statement of the case may be issued, and the appellant be given adequate time to respond.

The Board notes that the notice of disagreement also contested the ratings and effective dates of staged increased ratings assigned for bilateral hearing loss and a thoracolumbar spine disability, also granted in the June 2018 rating decision.  Those increased ratings were granted in connection with the Veteran's prior filed appeal pertaining to the ratings for those disabilities and were also included in the June 2018 VA Form 9 (Appeal to the Board of Veterans' Appeals).  Thus, they are ripe for consideration by the Board and are addressed above.

5. Entitlement to service connection for residuals of a left knee injury is remanded.

Prior to his death, the Veteran sought service connection of a left knee injury, which he claimed was secondary to his service-connected right knee disability.

The Veteran was afforded a VA examination in May 2014, at which time he denied any knee issues in the left knee.  Despite some limited range of flexion in the left knee, the examiner declined to diagnose a left knee disability, and also declined to opine in favor of any nexus between a left knee disability and a right knee disability, because based on a lack of subjective symptoms, a current knee condition could not be identified.

In April 2018, the Veteran was afforded a new VA examination of his knees, although the Board notes that it appears to be geared toward establishing the severity of the service-connected right knee, as opposed to diagnosing a left knee disability.  Regardless, the examination noted evidence of pain in the left knee with decreased range of motion.

Traditionally speaking, pain alone did not satisfy the definition of "disability" for VA compensation purposes.  However, during the pendency of this appeal, the Court of Appeals for the Federal Circuit (Federal Court) issued a decision holding that pain without a confirmed diagnosis could constitute a disability if the evidence showed that the pain resulted in functional impairment, for example, loss of range of motion.  See Saunders v. Wilkie, 886 F.3d 1356 (2018).

In this case, there is evidence of, at the very least, pain with limitation of motion.  To the extent that the 2014 examiner did not consider this in providing the etiology opinion of record, that opinion is inadequate.  While the Board recognizes that the Veteran has passed away, and thus cannot appear for a new examination, VA may still, nonetheless, obtain a medical opinion which considers the question of secondary service connection based on the evidence of record. Therefore, on remand, a medical opinion should be obtained.

6. Entitlement to TDIU is remanded.

Evidence received during the pendency of this appeal raises the question of whether the Veteran's service-connected low back and right knee disabilities affected his ability to obtain and maintain employment.

A TDIU is assigned when a veteran's service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. � 4.16.  Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. � 4.16 (a).

Because the Board has granted service connection of sleep apnea, and granted increased ratings for his low back disability, the question of whether the Veteran qualifies for TDIU on a schedular basis relies upon the assignment of a rating for the sleep apnea disability.  Unfortunately, the Board cannot assign a rating for that disability in the first instance.  As such, it must remand the question of entitlement to TDIU so that a rating for the now-service-connected sleep apnea may be assigned by the RO.

The matters are REMANDED for the following action:

1. Invite the appellant to submit any additional evidence in support of the claims pending on appeal.

2. Obtain a medical opinion from a qualified examiner regarding the Veteran's left knee pain with limitation of motion.  The complete claims file, to include the 2014 and 2018 examination reports should be reviewed.  After careful consideration, the examiner is requested to state whether it is at least as likely as not that the claimed left knee pain with limitation of motion is either (a) caused by, or (b) aggravated by the Veteran's service-connected right knee disability.  A rationale should accompany any opinion given.

3. Issue a statement of the case pertaining to the ratings and effective dates assigned for tinnitus and a surgical scar, as granted in the June 2018 rating decision, and allow the appellant appropriate time to appeal those ratings.

4.  Adjudicate the issue of entitlement to TDIU in light of any ratings assigned by virtue of the actions taken in this decision and remand.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Pryce, Counsel