Citation Nr: 18160563
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-60 397
DATE:	December 27, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted.   
Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied.
Entitlement to an initial compensable evaluation for left ear hearing loss is denied.
Entitlement to a compensable evaluation for scar, Cesarean section, is denied.
New and material evidence having not been received, the petition to reopen the claim for service connection for refractive error, myopia is denied.  
Entitlement to service connection for sleep apnea is granted.
Entitlement to service connection for left wrist disability is denied.
Entitlement to service connection for left shoulder strain is denied.
Entitlement to service connection for right shoulder strain is denied.
Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected adjustment disorder, is denied.
Entitlement to service connection for fibromyalgia is denied.  
Entitlement to an effective date prior to June 17, 2015 for the grant of service connection for bilateral tinnitus is denied.
Entitlement to an effective date prior to June 17, 2015 for the grant of service connection for left ear hearing loss is denied.
Entitlement to an effective date prior to May 1, 2005 for the award of service connection for scar, Cesarean section with assignment of a non-compensable rating, is denied.  
REMANDED
Entitlement to a rating in excess of 30 percent for adjustment disorder with depression is remanded.
Entitlement to a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is remanded.
Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded.
Entitlement to a rating in excess of 10 percent for cervical spine disability is remanded.
Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded.
Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded.
Entitlement to a rating in excess of 10 percent for left ankle disability is remanded.
Entitlement to a rating in excess of 10 percent for right ankle disability is remanded.
Entitlement to a rating in excess of 10 percent for right wrist disability is remanded.
Entitlement to service connection for sinusitis is remanded.
Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected bilateral pes planus, is remanded.  
FINDINGS OF FACT
1.  The Veteran’s combination of service-connected disabilities is reasonably shown to render her unable to secure or follow a substantial gainful occupation.   
2.  A 10 percent rating is the highest available for bilateral tinnitus and extraschedular consideration has not been claimed or raised by the record.  
3.  The Veteran’s hearing loss is manifested by Level I hearing in the left ear and Level I hearing in the non-service connected right ear. 
4. The Veteran’s claim for service connection for refractive error, myopia was denied by an unappealed July 2005 rating decision.   
5.  Evidence received since the July 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.     
6. The Veteran’s sleep apnea is at least as likely as not caused by her service-connected psychiatric disability.
7.  The Veteran is not shown to have disability of the left wrist, left shoulder, or right shoulder and is not shown to have chronic fatigue syndrome or fibromyalgia.
8. The Veteran’s claims for service connection for hearing loss and tinnitus were received on June 17, 2015; there is no indication that the Veteran filed earlier claims.  
9. The Veteran’s claim for an earlier effective date for service connection for scar, Cesarean section with assignment of a non-compensable rating is a freestanding claim.
CONCLUSIONS OF LAW
1.  The criteria for a TDIU have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16.
2.  The criteria for an initial rating in excess of 10 percent for bilateral tinnitus have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.  
3. The criteria for an initial compensable rating for left ear hearing loss have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.86, Diagnostic Code 6100.  
4. The July 2005 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103.
5. As new and material evidence has not been received, the criteria for reopening of the claim for service connection for refractive error, myopia have not been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156. 
6. The criteria for service connection for sleep apnea have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.
7. The criteria for entitlement to service connection for left shoulder disability, right shoulder disability, left wrist disability, chronic fatigue syndrome and fibromyalgia have not been met.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.   
8. The criteria for an effective date prior to June 17, 2015 for the awards of service connection for left ear hearing loss and bilateral tinnitus have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.  
9.  The criteria for an effective date prior to May 1, 2005 for the award of service connection for scar, Cesarean section have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.400 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1985 to April 2005.    
This matter is on appeal before the Board of Veterans Appeals (Board) from a December 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO).
Given that a number of claims for increased rating are on appeal; given that the evidence indicates that the Veteran is not currently employed; and given that her attorney has affirmatively argued for assignment of a TDIU, a claim for this benefit must be considered on appeal.  Rice v. Shinseki, 22 Vet. App.447, 452 (2009).  
A.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).
Regarding TDIU, the Veteran is currently service-connected for bilateral pes planus with plantar fasciitis, rated 30 percent disabling; adjustment disorder, rated 30 percent disabling, lumbar spine disability, rated 20 percent disabling, tendonitis of the right wrist, rated 10 percent disabling, cervical spine disability, rated 10 percent disabling, left ankle tendonitis, rated 10 percent disabling, right ankle tendonitis, rated 10 percent disabling, radiculopathy of the right lower extremity rated 10 percent disabling; and scar, residual of Cesarean Section and left ear hearing loss, both rated non-compensable.  Her total current combined rating is 80 percent and the combined rating for her orthopedic disabilities (which may be considered one disability for TDIU purposes) is greater than 40 percent.  Also, she has sufficient additional service-connected disability to bring her total combined rating to greater than 70 percent.  Consequently, she meets the schedular requirements for assignment of a TDIU.  38 C.F.R. § 4.16(a).      
In a January 2018 medical opinion, a private physician concluded that when her mobility, severe pain and physical limitations are factored in, the Veteran is unable to maintain substantial gainful employment as a result of her service-connected physical disabilities.  Additionally, in a January 2018 opinion, a private psychologist determined that Veteran could not engage in gainful employment due to her service-connected adjustment disorder.  Considering these two opinions together and resolving reasonable doubt in the Veteran’s favor, she is shown to be unable secure or follow a substantial gainful occupation due to her combination of service-connected disabilities.  Accordingly, assignment of a TDIU is warranted.  38 C.F.R. § 4.16(a).
B.  Increased Rating Claims
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  
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.  See 38 C.F.R. § 4.7.  In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.
1. Entitlement to an initial rating in excess of 10 percent for tinnitus.
The Veteran has requested a higher evaluation than 10 percent for tinnitus.  The RO denied the Veteran’s request because under Diagnostic Code 6260 the maximum evaluation for tinnitus is 10 percent.  The Veteran appealed that decision to the Board. 
In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit deferred to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limit a Veteran to a single disability evaluation for tinnitus, with a maximum rating of 10 percent, regardless of whether the tinnitus is unilateral or bilateral.  Because the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available, there is no basis in the law for awarding a rating in excess of 10 percent for this disability and the instant appeal must be denied.  38 C.F.R. §4.87, Diagnostic Code 6260; Sabonis v. Brown, 6 Vet. App. 426 (1994).
2. Entitlement to a compensable rating for left ear hearing loss.
Disability ratings for hearing loss are determined by reference first to Table VI of the rating schedule to find the appropriate Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland Consonant-Vowel Nucleus-Consonant (CNC) Test) and based on a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.
Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id. 
To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from “I” for essentially normal acuity, through “XI” for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.
Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
When a Veteran is only service connected for hearing loss in one ear, the nonservice-connected ear will generally be evaluated in Table VII as if it had been assigned a Level I hearing impairment designation.  38 C.F.R. § 4.85(f). Compensation, however, is payable for hearing loss in both ears as if both disabilities were service-connected if (1) hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more; (2) hearing impairment in the nonservice-connected ear, as measured by audio thresholds or speech discrimination scores, meets the criteria to be considered a disability under 38 C.F.R. § 3.385; and (3) the nonservice-connected disability is not the result of the Veteran’s own willful misconduct.  38 C.F.R. § 3.383(a)(3).
The Veteran has been assigned a noncompensable 0 percent evaluation throughout the rating period on appeal. The Board finds no basis for an award of a compensable rating, as discussed below.
On December 2015 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: 
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	5	10	15	15
LEFT	20	15	15	35	40

The average puretone thresholds were 9 decibels, right ear, and 26 decibels, left ear.  Speech audiometry revealed that speech recognition was 96 percent in the right ear and 96 percent in the left ear.  The Veteran was found to have hearing loss disability by VA standards in the left ear but not to have hearing loss disability in the right ear.  Consequently, only her left ear hearing loss is subject to service-connection.  
Based on these results, mechanical application of the rating criteria requires that the Veteran be considered as having Level I hearing in both ears.  The Level I hearing in the left ear finding is based on the Veteran having hearing loss, which is just over the threshold for hearing loss disability by VA standards.  The Level I hearing in the right ear is based on the Veteran not having hearing loss disability by VA standards.  In turn, the rating criteria mandate that a Veteran who is assigned Level I hearing loss in both ears must be assigned a noncompensable, 0 percent rating.  The Board notes that there is no evidence of record showing that the Veteran has hearing substantially worse than that shown on the December 2015 VA examination.  Accordingly, the Board has no basis in the record for assigning a compensable rating for the Veteran’s left ear hearing loss and this claim must be denied.  38 C.F.R. § 4.86(b).  
3.  Entitlement to an initial compensable evaluation for scar, residual of Cesarean section. 
The Veteran was granted service connection for scar, Cesarean section, by a July 2005 rating decision.  In a June 2015 claim she sought an increased rating.   
The applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended most recently in August 2018.  However, the 2018 revisions did not substantively change the Diagnostic Codes applicable to the Veteran’s claim.
Pursuant to Diagnostic Code 7801, scars not of the head, face or neck that are deep and nonlinear (that are associated with underlying soft tissue damage per 2018 revisions) and are at least 6 square inches (39 sq. cm.) warrants a 10 percent rating. A 20 percent disability rating is warranted for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.).  A 30 percent disability rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).
Diagnostic Code 7802 provides that scars other than head, face, or neck that are superficial and nonlinear (that are not associated with underlying soft tissue damage per 2018 revisions) will be rated as 10 percent disabling for areas of 144 square inches or greater.
Diagnostic Code 7804 provides a rating of 10 percent for one or two scars that are unstable or painful.  A 20 percent evaluation is warranted for three or four scars that are unstable or painful.  A 30 percent evaluation is warranted for five or six scars that are unstable or painful.
Finally, Diagnostic Code 7805 directs to evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.
The Veteran was provided a VA examination in December 2015.  At that examination the examiner noted the Veteran’s Cesarean section scar and noted that it was linear and measured 12 cm.  The examiner noted that the scar was not painful or unstable and was not due to burns.  He also noted that the scar did not cause any limitation of function and did not have any functional impact.  Consequently, the December 2015 VA examination results do not provide any basis for awarding a compensable rating for the service-connected scar.  38 C.F.R. § 4.118, Codes 7801-7805.  Moreover, there is no other evidence of record, which provides a basis for assigning such a rating.  Accordingly, the claim for increase for scar, Cesarean section, must be denied.  Id.
C.  Whether new and material evidence has been received to reopen a claim for service connection for myopia, refractive error.
Service connection for myopia, claimed as eye strain, was initially denied in the July 2005 rating decision.  In that decision, the RO found that myopia (i.e. nearsightedness) is considered refractive error, which in turn is considered a congenital or development defect, which is not subject to service connection.  The Veteran did not appeal this decision and it became final.  A petition to reopen the claim for service connection for myopia/eye strain was subsequently received in August 2015.
Evidence received subsequent to the July 2005 rating decision does not tend to indicate that the Veteran has an underlying disability other than myopia/refractive error.  Similarly, to the extent the Veteran has eyestrain, the evidence does not tend to indicate that it is caused by any underlying disability other than myopia/refractive error.  Consequently, the newly received evidence does not relate to an unestablished fact necessary to substantiate the claim (the presence of an eye disability, which can be subject to service connection) and does not raise a reasonable possibility of substantiating the claim.  Consequently, the newly received evidence is not new and material and the claim may not be reopened.  38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010).   
D.  Service connection claims
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  
Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).
1. Entitlement to service connection for sleep apnea. 
The Veteran is currently service connection for adjustment disorder, effective from from June 2015.  In a January 2018 opinion, the private physician opined that it is as likely as not that the Veteran’s depressive disorder and prescribed treatment for her mental health symptoms aided in the development of and permanently aggravated her obstructive sleep apnea.  The physician referred to medical research on the matter and the Veteran’s specific case, including the Veteran’s reports regarding his sleep apnea.  In light of the foregoing medical evidence, the Board finds service connection for sleep apnea is warranted on a secondary basis.
2. Entitlement to service connection for left shoulder strain.
3. Entitlement to service connection for right shoulder strain.
4. Entitlement to service connection for left wrist disability.
5. Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected adjustment disorder.
6. Entitlement to service connection for fibromyalgia.  
Regarding the Veteran’s claims for left and right shoulder disability, the service treatment records show that the Veteran sustained a mild strain of the left shoulder in April 1991 and a bilateral trapezius strain in August 2000.  At a December 2015 VA examination, the examining clinician determined that there was no evidence of a shoulder joint condition.  Rather, the examiner found that the Veteran was describing muscle soreness and spasm radiating from the cervical muscles to the trapezius muscle.  There is also no other medical evidence of record tending to indicate that the Veteran has current disability of either shoulder as opposed to her already service-connected cervical spine disability, which involves radiating pain into the trapezius muscles. 
Regarding the Veteran’s claim for service connection for left wrist disability, on her January 2005 report of medical assessment at separation, she indicated that she did experience wrist pain during active duty but that she did not seek medical treatment for it.  Subsequently, at a March 2005 VA examination, the Veteran reported pain in the right wrist, which began in 2002 but did not report any pain in the left wrist.  Similarly, during a December 2015 VA examination, the Veteran only reported right wrist pathology; no left wrist pathology was reported or noted during the examination.  Additionally, there is no other evidence of record tending to indicate that the Veteran has any current disability of the left wrist. 
Regarding the claims for service connection for chronic fatigue syndrome and fibromyalgia, the evidence does not show diagnoses of these disabilities during service or post-service.  The Veteran has been shown to experience some level of fatigue but this has been manifested as a symptom of her service-connected psychiatric disorder and/or her sleep apnea and not to chronic fatigue syndrome or any other separate disability manifested by fatigue.  Similarly, the Veteran has been shown to experience pain in a number of different parts of her body but this has been attributed to existing orthopedic and neurological disabilities, including her service-connected cervical spine disability, lumbar spine disability, bilateral ankle disability, bilateral foot disability and wrist disability and has not been attributed to fibromyalgia.  
Notably, the Veteran is competent to report symptoms such as fatigue and pain and she appears to believe that she has current chronic fatigue syndrome and fibromyalgia.  However, as a layperson without any demonstrated expertise in diagnosis such disease, the Board cannot assign this belief any probative value.  See e.g. Jandreau v. Nicholson, 492 F.3d 1372.  The Veteran is also competent to report shoulder and left wrist symptomatology.  However, it does not appear that she has actually reported that she has chronic left wrist symptoms and her reports of shoulder problems have been specifically attributed to her already service-connected cervical spine disability.  Consequently, given that the medical documentation of record does not establish any underlying chronic left wrist or shoulder disability, or any chronic fatigue syndrome or fibromyalgia, the weight of the evidence against a finding that any such disabilities exist.
In the absence of proof of current disability, there can be no valid claim of service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Accordingly, the claims for service connection for left and right shoulder disability, left wrist disability, chronic fatigue syndrome and fibromyalgia must be denied.  
E.  Earlier Effective Date Claims
1.  Entitlement to effective dates prior to June 17, 2015 for the awards of service connection for left ear hearing loss and bilateral tinnitus.
The Veteran seeks effective dates prior to June 17, 2015 for the awards of service connection for tinnitus and left ear hearing loss.  
The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.
In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).
On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments are effective for claims and appeals filed on or after March 24, 2015.  As claims and appeals in this case was filed after that date, the amendments are applicable to the evidence of record dated from March 24, 2015 to the present.  Prior to March 24, 2015, the Board has considered whether the Veteran filed any more informal communications, which can be construed as claims for service connection for hearing loss or tinnitus.
However, the evidence does not show that the Veteran submitted any communication prior to June 27, 2015, which can be construed as a claim for service connection for hearing loss or tinnitus.  Moreover, neither the Veteran nor her attorney has made any specific assertion that such a communication was submitted.  Consequently, as the assigned effective date for service connection may not be any earlier than the date the claim was received (for claims received more than one year after service), there is no basis in the record for assigning an effective date any earlier than June 27, 2015 for the awards of service connection for left ear hearing loss and tinnitus.  Accordingly, these claims must be denied.  38 C.F.R. § 3.400.  
2.  Entitlement to an effective date prior to May 1, 2005 for the award of service connection for scar, Cesarean section. 
As noted above, the Veteran was awarded service connection for scar, Cesarean section by the July 2005 rating decision.  A non-compensable rating was assigned effective May 1, 2005.  In June 2015, the Veteran sought an increased rating.  Then, in the December 2015 rating decision, the non-compensable rating was continued (i.e., an increased rating was denied).  In her December 2016 notice of disagreement, the Veteran, through use of check box, indicated that she was appealing the effective date assigned for the scar by the December 2015 rating decision.  However, no effective date was assigned in relation to the scar by the December 2015 rating decision.  Thus, there was actually no effective date decision pertaining to the scar from which she could appeal.  Moreover, to the extent she was seeking to claim an effective date earlier than May 1, 2005 for the award of service connection for the scar, with assignment of the noncompensable rating, this would amount to a freestanding claim for an effective date, which is prohibited as a matter of law.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Accordingly, the Veteran’s claim must be denied.      
REASONS FOR REMAND
The issues of entitlement to for service connection for bilateral knee disability and sinusitis are remanded.  The issues of entitlement to increased ratings for adjustment disorder, a cervical spine disability, a lumbar spine disability, left and right ankle disability, left and right lower extremity radiculopathy, bilateral pes planus and left wrist disability are also remanded.  
Regarding the claim for service connection for left knee disability, the Veteran has alleged that she her current bilateral knee pain is related to her service connected bilateral pes planus.  Given that she is service-connected for pes planus; given that she is competent to report current bilateral knee symptomatology; and given that it appears she has an altered gait associated with her pes planus, a remand is necessary to afford the Veteran a VA examination in relation to this claim.
Regarding the claim for service connection for sinusitis, the service treatment records show some treatment for sinusitis, including in May 2000 and May 2003.  Post-service medical records also include at least one notation of sinusitis during a September 2016 VA otolaryngology consult.  There the Veteran reported that she had had sinusitis “all the time.”  It was also noted that she had last been treated for a sinus infection in December 2014.  Given the treatment in service and post-service and given the Veteran’s reports of additional sinus problems after service but prior to December 2014, on remand, she should be afforded a VA examination in relation to this claim.  
Regarding the claims for increase for cervical spine disability, lumbar spine disability, left and right ankle disability, bilateral pes planus, bilateral radiculopathy, right wrist disability and adjustment disorder, the Veteran most recently received VA examinations to assess the current severity of these disabilities in December 2015.  Evidence added to the record since this time, including the material submitted by the Veteran’s attorney, appears to indicate potential worsening of these disabilities.  See e.g. January 2018 private medical opinion, indicating that the Veteran’s ability to stand or sit for any length of time would be extremely limited.  See also January 2018 private psychological evaluation indicating that the Veteran’s adjustment disorder alone would prevent her from engaging in substantial gainful employment.  Given that three years have passed since the previous VA examinations and given the evidence of potential worsening, on remand, the Veteran should be afforded new VA examinations to assess the current severity of these service-connected disabilities.  
Prior to arranging for the above development, records of VA medical treatment from October 2017 to the present should be obtained.       
The matters are REMANDED for the following action:
1.  Obtain records of VA medical treatment from October 2017 to the present.
2.  Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current sinusitis.  Any indicated tests, to include a CT scan if indicated, should be performed. The claims file should be reviewed by the examiner in conjunction with the examination.  The examiner must opine whether any current sinusitis it is at least as likely as not related to the Veteran’s military service, including instances of sinusitis shown therein.  
The examiner should provide a rationale for the medical opinion provided.
3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current left or right knee disability.  Any indicated tests should be performed.  The claims file should be reviewed by the examiner in conjunction with the examination.  The examiner must provide opinions in answer to the following questions:
A.	Is it at least as likely as not that any current left knee disability has been caused by the Veteran’s service-connected pes planus and/or ankle disability?
B.	Is at least as likely as not that any current left knee disability has been aggravated by the Veteran’s service-connected pes planus and/or ankle disability?
C.	  Is at least as likely as not that any current right knee disability has been caused by the Veteran’s service-connected pes planus and/or ankle disability?
D.	 Is at least as likely as not that any current right knee disability has been aggravated by the Veteran’s service-connected pes planus and/or ankle disability?
The examiner should provide a rationale for all opinions provided.  
4.  Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine disability, lumbar spine disability, left and right lower extremity radiculopathy, left and right ankle disability, bilateral pes planus and right wrist disability.  The claims file should be made available for review in conjunction with the examination.  The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria.  
With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)).  
The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  The examiner should discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living.  
If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or a lack of knowledge or training on the part of the examiner.
5.  Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected psychiatric disorder.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.  To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the psychiatric disorder alone.


 
Lindsey M. Connor
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Dan Brook, Counsel 
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