Citation Nr: 1805924 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-35 888 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for congestive cardiomyopathy with hypertension. 2. Entitlement to service connection for a gastrointestinal disorder, including as due to exposure to herbicide agents. 3. Entitlement to service connection for diabetes mellitus type II, including as due to exposure to herbicide agents. 4. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as due to exposure to herbicide agents and/or diabetes mellitus type II. 5. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as due to exposure to herbicide agents and/or diabetes mellitus type II. 6. Entitlement to service connection for sleep apnea, including as due to exposure to herbicide agents. 7. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected disabilities. 8. Entitlement to an increased disability rating for the service-connected lumbosacral strain with degenerative disc disease (lumbar spine disability), in excess of 20 percent from April 16, 2012, and in excess of 40 percent from June 11, 2013. 9. Entitlement to a higher initial disability rating for radiculopathy of the left lower extremity in excess of 10 percent from April 16, 2012. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010, November 2012, and July 2015 rating decisions of the RO in San Diego, California. The January 2010 rating decision denied service connection for a gastrointestinal disorder, congestive cardiomyopathy, diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and sleep apnea. In an October 2010 Notice of Disagreement (NOD), the Veteran only challenged the denial of service connection for a gastrointestinal disorder, diabetes mellitus and associated peripheral neuropathies, and sleep apnea; therefore, the January 2010 rating decision became final as to the issue of service connection for congestive cardiomyopathy. The November 2012 rating decision continued the disability rating for the lumbar spine disability at 20 percent and granted service connection for radiculopathy of the left lower extremity and assigned an initial 10 percent rating from April 16, 2012. Subsequently, a February 2014 rating decision granted an increased disability rating of 40 percent from June 11, 2013 for the lumbar spine disability. In the July 2015 rating decision, the RO declined to reopen service connection for congestive cardiomyopathy and denied service connection for an acquired psychiatric disorder. In June 2016, the issues of service connection for a gastrointestinal disorder, diabetes mellitus, peripheral neuropathy in the bilateral upper and lower extremities, and sleep apnea, and an increased disability rating for the lumbar spine disability and a higher initial rating for radiculopathy in the left lower extremity came before the Board for appellate adjudication. In a June 2016 decision, the Board included the issue of a TDIU and remanded the matters to the RO for further development. Since issuance of the Statement of the Case (SOC) in October 2016 and the Supplemental Statement of the Case (SSOC) in May 2017, additional evidence has been received by the Board. The Veteran's substantive appeals via VA Forms 9 were all received after February 2, 2013 (received by VA in December 2013, May 2014, and October 2016); therefore, this evidence is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction, which has not been requested in this case. 38 U.S.C. § 7105(e) (2012). As such, the Board may consider this evidence in the first instance. The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. The issues of service connection for a gastrointestinal disorder, peripheral neuropathy in the bilateral upper and lower extremities, initial disability rating for left lower extremity radiculopathy, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A January 2010 rating decision denied service connection for congestive cardiomyopathy on the basis that the congestive cardiomyopathy was not shown to be related to active service. 2. The Veteran did not appeal the January 2010 rating decision as to the denial of service connection for congestive cardiomyopathy after being notified of appellate rights, and no additional evidence was received as to this issue prior to the expiration of the appeal period. 3. Evidence received since the January 2010 rating decision is new to the claims file, but does not have any tendency to establish a nexus between congestive cardiomyopathy and active service, so does not raise a reasonable possibility of substantiating service connection for congestive cardiomyopathy. 4. The Veteran was not exposed to herbicide agents during service while stationed at Camp Pendleton, California. 5. The Veteran is currently diagnosed with diabetes mellitus type II. 6. Symptoms of diabetes mellitus were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 7. The Veteran is currently diagnosed with sleep apnea. 8. The current sleep apnea was not incurred in, or otherwise etiologically related to, active service. 9. For the entire increased rating period on appeal from April 16, 2012, the lumbar spine disability has more nearly approximated painful limitation of motion of the thoracolumbar spine with forward flexion limited to 30 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12 month period. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for congestive cardiomyopathy became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen service connection for congestive cardiomyopathy. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2017). 3. Diabetes mellitus type II was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 1133, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 5. Resolving all reasonable doubt in favor of the Veteran, for the rating period on appeal from April 16, 2012 to June 11, 2013, the criteria for an increased disability rating of 40 percent, and no higher, for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 6. For the rating period on appeal from June 11, 2013, the criteria for a disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the instant decision remands the issues of service connection for a gastrointestinal disorder, peripheral neuropathy in the upper and lower extremities, initial disability rating for left lower extremity radiculopathy, and TDIU, no further discussion of VA's duties to notify and to assist is necessary. With respect to new and material evidence claims, the United States Court of Appeals for Veterans Claims (Court) has held that VA must notify a claimant of the evidence and information that is necessary to reopen a claim and to establish entitlement to the underlying claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In July 2015, the RO provided the Veteran with notice of the elements of new and material evidence and the information needed to establish a claim for service connection. With respect to the issue of service connection for diabetes mellitus and sleep apnea, the RO provided notice to the Veteran in September 2008, prior to the January 2010 rating decision that denied service connection. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the RO provided the Veteran notice in August 2012, prior to the November 2012 rating decision denying an increased rating for the service- connected lumbar spine disability. In consideration of the foregoing, the Board finds that VA has satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of the claims. First, VA satisfied its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, private treatment records, Social Security Administration (SSA) records, and lay statements. Second, VA satisfied its duty to provide a medical examination when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed above, the Board's June 2016 decision remanded the matters to the RO for further development. Specifically, the Board's June 2016 remand directives instructed the RO to schedule a new VA examination in order to help determine the current severity of the lumbar spine disability. The Veteran was provided a VA examination in September 2016, the report for which has been associated with the claims file. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2016 VA examination report, taken in light of the other lay and medical evidence of record, is thorough and adequate and provides a sound basis upon which to base a decision with regard to the issue of an increased rating for the lumbar spine disability on appeal. The VA examiner reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted an in-person examination, and provided detailed findings supported by clinical testing. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically addressing whether the current diabetes mellitus and sleep apnea are related to service. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). In this case, because the weight of the evidence is against finding any injuries, diseases, or events in service that could serve as a basis for service connection for diabetes mellitus and sleep apnea, there is no duty to provide a VA medical examination. Absent evidence at least suggestive of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the claims for service connection for diabetes mellitus and sleep apnea, as any such opinions would necessarily be speculative because they would have to inaccurately assume in-service injury, disease, or event - contrary to the weight of the evidence and the Board's findings in this case. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). As further discussed below, the Veteran has made the specific contention that the current diabetes mellitus is related to exposure to herbicides while station at Camp Pendleton, California; however, service connection based on exposure to herbicides is determined by actual or presumed exposure to herbicides. As the Veteran has made no assertions or submitted any evidence contending onset of symptoms or actual diagnosis of diabetes mellitus or sleep apnea in service, the Board finds that VA's duty to assist the Veteran in obtaining additional evidence to support a nexus has not been triggered. See 38 U.S.C. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). For these reasons, the Board finds that a remand for VA medical opinions is not warranted. In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Reopening Service Connection for Congestive Cardiomyopathy Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). As discussed above, the January 2010 rating decision, in pertinent part, denied service connection for congestive cardiomyopathy on the basis that the congestive cardiomyopathy was not shown to be related to active service. In January 2010, the Veteran was notified of the RO's decision and was provided notice of procedural and appellate rights. In an October 2010 NOD, the Veteran only challenged the denial of service connection for a gastrointestinal disorder, diabetes mellitus and associated peripheral neuropathies, and sleep apnea. Because the Veteran did not appeal the January 2010 rating decision as to congestive cardiomyopathy within one year of receiving notice of the rating decision, and no additional evidence was received within one year of the notice, the January 2010 rating decision became final as to the issue of service connection for congestive cardiomyopathy. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. The Veteran filed the present claim to reopen service connection for congestive cardiomyopathy in June 2013. The July 2015 rating decision on appeal continued the denial of service connection for congestive cardiomyopathy, finding that the evidence submitted was not new and material because it did not raise a reasonable possibility of substantiating a claim for service connection because it did not include evidence of a nexus between congestive cardiomyopathy and active service. Since the January 2010 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, SSA records, and private treatment records, which evidence is new because they have not been previously submitted. However, the new evidence is not material because it does not raise a reasonable possibility of substantiating the claim for service connection for congestive cardiomyopathy because it does not have any tendency to establish a nexus between congestive cardiomyopathy and active service, which was the basis of the prior final denial. For these reasons, the Board finds that the evidence received since the January 2010 final rating decision does not relate to the previously unestablished fact of a nexus between congestive cardiomyopathy to service; thus, the evidence received since the January 2010 rating decision is not new and material evidence to reopen service connection for congestive cardiomyopathy. 38 U.S.C. § 5107; 38 C.F.R. § 3.156. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is currently diagnosed with diabetes mellitus which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, while diabetes mellitus is a disease for which presumptive service connection based on exposure to herbicides may be granted, obstructive sleep apnea is not. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical professional's opinion accounts such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Additional significant factors include whether the examining medical professional had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions because examiner failed to consider certain relevant information). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Diabetes Mellitus Type II The Veteran contends that a currently diagnosed diabetes mellitus disorder is the result of being exposed to herbicide agents while stationed at Camp Pendleton, California. In an August 2008 claim, the Veteran asserts that Agent Orange was sprayed around the mess training school to which he was assigned and that he could smell herbicide agents in the air when setting up equipment outdoors. Additionally, the Veteran contends being exposed to herbicide agents at Camp Pendleton when assigned to guard duty at the warehouse where herbicide agents were being stored. Initially, the Board finds that the Veteran is currently diagnosed with diabetes mellitus type II. An August 1999 VA treatment record shows the Veteran was recently diagnosed with diabetes mellitus. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not have "service in the Republic of Vietnam," so may not be presumed to have been exposed to herbicides during service, and did not otherwise have actual exposure to herbicides during service, to warrant presumptive service connection for diabetes mellitus. Military personnel records reflect the Veteran did not have service in the Republic of Vietnam (Vietnam). Additionally, in November 2008, the United States Joint Services Record Research Center (JSRRC) responded to the RO's September 2008 request for verification of herbicide exposure that there are no records of herbicide exposure during the Veteran's service at Camp Pendleton. Further, Camp Pendleton, California, is not listed in the Department of Defense (DOD) Inventory that lists all herbicide use, storage, and testing sites outside of Vietnam. See VA Adjudication Procedure Manual, M21, Part IV, Subpart ii, Chapter 2, Section C. Accordingly, the Board finds that the Veteran was not actually exposed to herbicides while stationed at Camp Pendleton, California. The Federal Circuit has held that, when a veteran is not found to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents, but must also determine whether the current disability is otherwise the result of active service. After reviewing all of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the current diabetes mellitus did not have its onset during, and is not otherwise related to, active service. Service treatment records do not reflect any history, complaints, diagnosis, or treatment for any symptoms of diabetes mellitus. Instead, an April 1970 service separation examination shows the Veteran's endocrine system was found to be clinically normal. Similarly, the Board finds that the weight of the evidence is against finding that symptoms of diabetes mellitus were "chronic" in service. As discussed above, service treatment records do not reveal any complaints, diagnosis, or treatment for any symptoms of diabetes mellitus, nor has the Veteran asserted that symptoms of diabetes mellitus began during active service. The Board next finds that the weight of the evidence is against finding that symptoms of diabetes mellitus were "continuous" since service separation. The Veteran has not asserted that diabetes mellitus symptoms have been present since service separation in April 1970. VA treatment records also do not reflect any evidence of diabetes mellitus until September 1989 when the Veteran's glucose test was high, 19 years after service separation. An April 1999 VA treatment record reflects an assessment of diabetes mellitus, and an August 1999 VA treatment record reflects that the Veteran was recently diagnosed with diabetes mellitus. This same evidence also shows that symptoms of diabetes mellitus did not manifest to a compensable degree within one year of service separation. As discussed above, post-service treatment records demonstrate that diabetes mellitus did not have its onset until April 1999, approximately 29 years after service separation in April 1970. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current diabetes mellitus and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus on a direct, presumptive, or any other basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for Sleep Apnea The Veteran generally contends that sleep apnea is the result of exposure to herbicides during active service. See August 2008 claim. Initially, the Board finds that the Veteran is currently diagnosed with sleep apnea. See April 1999 VA treatment record. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the current sleep apnea did not have its onset in service, and is not otherwise caused by active service. As discussed above, the evidence demonstrates that the Veteran was not exposed to herbicide agents while stationed at Camp Pendleton, California. Further, service treatment records do not reflect any history, complaints, diagnosis, or treatment for any symptoms of sleep apnea during service. Additionally, the April 1970 service separation examination shows the Veteran's nose, sinuses, mouth and throat, lungs and chest were examined and found to be clinically normal. As the record does not contain competent evidence indicating that the current sleep apnea is related to active service, the Board finds that the weight of the evidence demonstrates that sleep apnea did not have its onset during, and is not otherwise etiologically related to active service; therefore, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating for the Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the weight of the evidence demonstrates that the lumbar spine disability did not undergo an increase within the one year period before the claim was filed with VA in April 2012. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. 303. The Veteran is in receipt of a 20 percent disability rating for the service-connected lumbar spine disability under the General Rating Formula from April 16, 2012 to June 11, 2013, and a 40 percent disability rating for the period from June 11, 2013. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran generally contends that the lumbar spine disability has increasingly worsened. See April 2012 claim. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period on appeal from April 16, 2012 to June 11, 2013, the lumbar spine disability has more nearly approximated painful limitation of motion of the thoracolumbar spine with forward flexion limited to 30 degrees, without ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12 month period. An August 2012 VA examination report reflects forward flexion in the thoracolumbar spine to 50 degrees, with pain beginning at 30 degrees, and a combined range of motion in the thoracolumbar spine of 75 degrees, including as due to pain. The August 2012 VA examiner assessed no additional limitation of motion of the thoracolumbar spine following repetitive use testing, but did assess functional impairment due to limited movement and painful motion. The August 2012 VA examination report also reflects a positive finding for IVDS, which did not cause any incapacitating episodes over the last 12 months, and a negative finding for ankylosis. Resolving reasonable doubt in the Veteran's favor, the Board finds that, for the rating period on appeal from April 16, 2012 to June 11, 2013, the lumbar spine disability has more nearly approximated forward flexion limited to 30 degrees due to painful motion; therefore, an increased disability rating of 40 percent is warranted for the period from April 16, 2012 to June 11, 2013. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board finds that a rating in excess of 40 percent for the lumbar spine disability is not warranted for the entire increased rating period from April 16, 2012 forward. The evidence of record demonstrates that the lumbar spine disability has not manifested in unfavorable ankylosis of the entire thoracolumbar spine (criteria required for a 50 percent rating). The August 2012 VA examination report specifically reflects that the thoracolumbar spine is able to achieve some range of motion in all fields tested, and therefore, is not ankylosed. Similarly, the Veteran underwent additional VA examinations in November 2013 and September 2016, and the examination reports for which both show negative findings for ankylosis in the thoracolumbar spine. A private medical opinion from Dr. H.S. dated in August 2014 discusses the impact of the lumbar spine disability on the Veteran's ability to obtain and maintain employment, but similarly does not reflect findings of unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record demonstrates that the lumbar spine disability has not manifested in incapacitating episodes having a total duration of at least six weeks during a 12 month period (criteria required for a 60 percent rating). Although the August 2012 VA examination report reflects a positive finding for IVDS that did not result in any incapacitating episodes in the last 12 month period, the November 2013 and September 2016 VA examination reports both reflect negative findings for IVDS. VA and private treatment records throughout the entire period on appeal also do not reflect incapacitating episodes of at least six weeks during any 12 month period. The Board has also considered whether a separate rating is warranted for any neurologic deficits resulting from the service-connected lumbar spine disability at any point during the entire rating period on appeal from April 16, 2012. No evidence has been received by VA indicating that the Veteran is currently diagnosed with any neurologic abnormalities (other than the service-connected left lower extremity radiculopathy and possible right lower extremity radiculopathy discussed below) associated with the service-connected lumbar spine disability. Additionally, the August 2012, November 2013, and September 2016 VA examination reports all contain negative findings for other neurologic abnormalities that may be associated with the lumbar spine disability. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased rating in excess of 40 percent for the lumbar spine disability for the entire rating period on appeal from April 16, 2012 forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. Extraschedular Referral Consideration The Board has considered whether referral for extraschedular consideration is warranted for the service-connected lumbar spine. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the Board finds that all the symptomatology and impairment caused by the Veteran's lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's back disability has manifested in painful movement, stiffness, and limitation of motion due to pain and during flare-ups. The schedular criteria for rating the back disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell at 33-36 (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatology of the ailments). All the symptomatology and functional impairment described above result from the limitation motion of the thoracolumbar spine, to include as due to pain, stiffness, muscle spasm, and all the symptoms described by the Veteran are contemplated in the schedular rating assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or stiffness, or indirectly as orthopedic factors that limit motion and function. See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca at 206-07. The schedular rating criteria specifically include stiffness and any and all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine. 38 C.F.R. § 4.71a, Plate V. Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). Therefore, the Board finds that the record does not reflect that the lumbar spine disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record reflects that the Veteran has specifically asserted being unemployable due to the service-connected lumbar disability; however, the issue of a TDIU is inextricably intertwined with the issues being remanded as discussed below. ORDER New and material evidence not having been received, the appeal to reopen service connection for congestive cardiomyopathy is denied. Service connection for diabetes mellitus, including as claimed due to herbicide exposure, is denied. Service connection for sleep apnea, including as claimed due to herbicide exposure, is denied. For the period from April 16, 2012 to June 11, 2013, an increased disability rating of 40 percent, but no higher, for the lumbar spine disability is granted; for the period from June 11, 2013, an increased disability rating in excess of 40 percent for the lumbar spine disability is denied. REMAND Service Connection for a Gastrointestinal Disorder As discussed above, the Board's June 2016 Decision remanded the matter of service connection for gastrointestinal disorder to the RO for further development. Specifically, the Board's June 2016 remand directives instructed the RO to schedule the Veteran for a VA examination and requested that the VA examiner identify any gastrointestinal disorders the Veteran has been diagnosed with during the period pertinent to the August 2008 claim for service connection. Next, for each of the gastrointestinal disorders identified, the VA examiner was asked to provide an opinion as to whether such disorder(s) were related to, or aggravated by, military service to include treatment reflected in an August 1967 service treatment record (complaints of bloody stools) and an April 1968 service treatment record (treatment for acute gastroenteritis). On remand, the Veteran was provided with a VA examination in September 2016. The September 2016 VA examination report reflects the Veteran was diagnosed with constipation during the examination, and no other gastrointestinal disorders since August 2008 were identified. The September 2016 VA examiner's diagnosis is inconsistent with VA treatment records reflecting diagnoses for diverticulitis, omental infarct, epiploic appendicitis, gastroenteritis, constipation, and a history of helicobacter infections. See March 2007 VA treatment record; January 2016 VA treatment record. The September 2016 VA examiner opined that it is less likely than not that the diagnosed constipation is the result of military service given that the Veteran's gastrointestinal system was found to be clinically normal during a post-service July 1982 medical examination, but did not address the August 1967 or April 1968 service treatment records as requested. In February 2017, the VA examiner who conducted the September 2016 VA examination provided an addendum opinion, which merely states that the August 1967 and April 1968 service treatment records and April 1970 service separation examination reports had been reviewed, without further opinion or explanation. Based on the foregoing, the Board finds that the September 2016 VA examination and opinion and February 2017 VA addendum opinion do not comply with the Board's June 2016 remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, another remand is necessary for a new VA examination and opinion. Service Connection for Bilateral Upper and Bilateral Lower Extremity Peripheral Neuropathy The Veteran generally contends that service connection for bilateral upper and lower extremity peripheral neuropathy is warranted as the result of herbicide exposure and/or diabetes mellitus. As discussed above, the Board finds that the Veteran was not exposed to herbicides during active service and the instant decision denies service connection for diabetes mellitus. Notwithstanding these findings, service connection may still be established on a direct basis. An August 1999 VA treatment record reflects the Veteran complained of left-sided neck pain, hand and forearm numbness, and VA treatment records starting from April 2005 reflect a prior medical history of peripheral neuropathy; however, it is unclear from the record in which extremities the Veteran has been diagnosed with peripheral neuropathy. Accordingly, remand is necessary for a VA examination to determine whether the Veteran has current diagnoses for bilateral upper and/or lower extremity peripheral neuropathy and, if so, a VA opinion on the question of etiology. The Board notes that the Veteran is already service connected for left lower extremity radiculopathy and is in receipt of a 10 percent disability rating from April 16, 2012 under Diagnostic Code 8520. 38 C.F.R. § 4.124a (2017). The Veteran has also been awarded service connection in the right lower extremity and is in receipt of a 10 percent disability rating from June 11, 2013 under Diagnostic Code 8520. Although there is some indication in the record that the Veteran may also be diagnosed with peripheral neuropathy in the bilateral lower extremities, the record does not reflect that symptoms of peripheral neuropathy have been differentiated from the service-connected radiculopathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). For this reason, further examination may help determine whether the Veteran also has peripheral neuropathy of the lower extremities, which symptoms correlate to the peripheral neuropathy and which symptoms correlate to the service-connected disabilities, and help identify the cause (etiology) of the peripheral neuropathy to help determine whether it is service related. Accordingly, in the event that service connection is awarded for peripheral neuropathy in the lower extremities, such symptoms will be rated together with the service-connected radiculopathy under 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.14 (2017) (pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Service Connection for an Acquired Psychiatric Disorder The Veteran generally contends that service connection for an acquired psychiatric disorder is the result of service-connected disabilities. In a January 2017 private medical opinion, Dr. H.H. opined that it is more likely than not that the Veteran's depressive disorder is the result of current medical problems to include the service-connected lumbar spine disability, tinnitus, and left lower extremity radiculopathy; however, as Dr. H.H. did not provide a rationale for that opinion, the January 2017 private opinion is of no probative value as to the etiology of the current depressive disorder. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring medical examiners to provide a "reasoned medical explanation connecting" observations and conclusions). At the same time, the Veteran has not been provided with a VA mental health examination. A medical examination or opinion is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As such, remand is necessary for a VA examination and VA opinion on the issue of service connection for an acquired psychiatric disorder. Initial Rating for Left Lower Extremity Radiculopathy and TDIU The Board's June 2016 remand directives instructed the RO to schedule a new VA examination in order to help determine the current severity of the service-connected left lower extremity radiculopathy. On remand, in September 2016 the Veteran was provided with a new VA examination for back conditions. Although the Veteran has been previously diagnosed with, and service-connected for, left lower extremity radiculopathy, the September 2016 VA examination report reflects a negative finding for radiculopathy. As the Veteran was not provided with a separate VA examination to help determine the current severity of the left lower extremity radiculopathy, the Board finds that its June 2016 remand directives were not complied with and another remand for a VA examination is needed. See Stegall, 11 Vet. App. at 271. TDIU Finally, the separate issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a higher initial disability rating for left lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). VA should obtain all relevant VA treatment records which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the RO should attempt to obtain any outstanding VA treatment records for the period from May 2017. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record VA treatment records for the period from May 2017. 2. Schedule a VA examination in order to assess the claimed gastrointestinal disorder. The claims folder should be made available to the examiner for review, who should indicate on the examination report that he/she has reviewed the relevant documents. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner is asked to diagnose all gastrointestinal disorders starting from the one year period preceding the Veteran's August 2008 claim for service connection. For each of the above diagnosed gastrointestinal disorders, the VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. probability of 50 percent or more) that the currently diagnosed gastrointestinal disorder is caused by, or related to, military service, to include the in-service treatment reflected in the August 1967 and April 1968 service treatment records? b) Is it at least as likely as not that the currently diagnosed gastrointestinal disorder has been worsened beyond its normal progression by any of the service-connected disabilities, to include by any medications required to treat the service-connected disabilities? 3. Schedule a VA examination to assess the claimed peripheral neuropathy in the upper and lower extremities. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: a) Does the Veteran currently have diagnoses for peripheral neuropathy in the upper and lower extremities? If there is no diagnosis for peripheral neuropathy in any or all of the upper and lower extremities, the VA examiner should so state. b) If, and only if, the VA examiner diagnoses a current peripheral neuropathy disorder, is it at least as likely as not (i.e. probability of 50 percent or more) that the currently diagnosed peripheral neuropathy is caused by the service-connected lumbar spine disability? 4. Schedule a VA examination in order to assess the Veteran's current acquired psychiatric disorders. The claims folder should be made available to the examiner for review, who should indicate on the examination report that he/she has reviewed the relevant documents. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current acquired psychiatric disorder is caused by the Veteran's other service-connected disabilities? b) Is it at least as likely as not that the current acquired psychiatric disorder has been worsened beyond its natural progression by the Veteran's other service-connected disabilities? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 5. Schedule a VA examination in order to assess the current severity of the service-connected left lower extremity radiculopathy. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed, including an EMG. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide findings on the following and include an appropriate rationale for those findings: a) Evaluate the extent and severity of the left lower extremity radiculopathy by rendering an opinion as to whether it more nearly approximates incomplete paralysis of the sciatic nerve (that is mild; moderate; moderately severe; or severe, with marked muscular atrophy) or complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. b) If the left lower extremity radiculopathy is wholly sensory, render an opinion as to whether it more nearly approximates mild or moderate impairment. 6. Thereafter, readjudicate the issue remaining on appeal. If the benefits sought on appeal are not granted, the Veteran and representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs