Citation Nr: 18145899
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 16-19 576A
DATE:	October 30, 2018
ORDER
Entitlement to an effective date prior to January 2, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied.
New and material evidence having not been submitted, the Veteran’s application to reopen the claim of entitlement to service connection for a cervical spine disability is denied.
Entitlement to service connection for a traumatic brain injury (TBI) is denied.
Entitlement to service connection for migraine headaches to include as a symptom of TBI is denied.
Entitlement to an initial 20 percent rating for a lumbar spine disability is granted.
Entitlement to a rating in excess of 10 percent for endometriosis for the period prior to December 31, 2014 is denied.
Entitlement to a compensable rating for endometriosis for the period since December 31, 2014 is denied.



REMANDED
Entitlement to an initial compensable evaluation for scars due to laparoscopic hysterectomy is remanded.
Entitlement to an initial rating in excess of 50 percent for PTSD is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 
FINDINGS OF FACT
1. The Veteran’s original service connection claim for a psychiatric disability was denied in a June 1998 rating decision.  The Veteran did not perfect an appeal of the June 1998 rating decision.
2. A request to reopen the claim of service connection for PTSD was received in November 2000 and was denied in an April 2002 rating decision which was not appealed and became final. 
3. A request to reopen the claim of service connection for PTSD was received in August 2003 and was denied in a January 2004 rating decision which was not appealed and became final.
4. A request to reopen the claim of service connection for PTSD was received in January 2011 and was denied in an August 2011 rating decision which was not appealed and became final.
5. A request to reopen the claim of service connection for PTSD was received on January 2, 2014.
6. A January 2015 rating decision granted service connection for PTSD, effective January 2, 2014.  The effective date was the date of the claim to reopen her claim for service connection.
7.  In an unappealed August 2011 rating decision, the RO confirmed and continued the denial of service connection for a back, coccyx and neck disability. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision.
8. The evidence received since the August 2011 confirmation of the denial of service connection for a cervical spine disability includes evidence that was not previously of record, but it does not raise a reasonable possibility of substantiating the claim.
9. The Veteran’s TBI is not related to an in-service injury, disease, or event.
10. The Veteran’s migraine headache disability is not related to service, and is not caused or aggravated by a service-connected disability. 
11.  The Veteran’s lumbar spine disability has been manifested by pain and limitation of motion but not by forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor-prescribed bed rest and treatment by a physical with a duration of 4 weeks or more during any 12-month period.
12. For the period prior to December 31, 2014, there is no evidence that the Veteran’s endometriosis had resulted in pelvic pain or heavy or irregular bleeding not controlled by treatment.
13. For the period since December 31, 2014, there is no evidence that the Veteran’s endometriosis has resulted in pelvic pain or other symptoms that requires continuous treatment for control. 
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to January 2, 2014 for the grant of service connection for PTSD have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).
2. The August 2011 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.113 (2017).
3. The criteria for reopening the claim for service connection for a cervical spine disability have not been met.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 
4.  A TBI was not incurred in active military service.  38 U.S.C.A §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2016).
5. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability, is not warranted.  38 U.S.C. §§ 1110, 1131 (2012) 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2017). 
6. The criteria for an initial 20 percent evaluation for a lumbar spine disability have been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2017).
7. For the period prior to December 31, 2014, the criteria for a rating in excess of 10 percent for a service-connected endometriosis disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629 (2017).
8.  For the period since December 31, 2014, the criteria for a compensable disability evaluation for service-connected endometriosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1984 to May 1991.
These matters are before the Board of Veterans’ Appeals (the Board) on appeal of December 2014 and January 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).
In the December 2014 rating decision, the RO reopened and then denied the Veteran’s claim for service connection for a cervical spine disability.  However, the Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Earlier Effective Date
Laws and Regulations
Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
The terms “claim” and “application” mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).  Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 3.155(a).
VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157.  Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.
Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 
The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(q) (1)(ii).  However, new and material evidence received prior to the expiration of the appeal period (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b) (2017). 

Factual Background and Analysis
Based upon the evidence of record, the Board finds entitlement to an earlier effective date prior to January 2, 2014, for the grant of her service-connected PTSD is not warranted.  
The Veteran’s original service connection claim for a psychiatric disorder was denied in a June 1998 rating decision.  The Veteran did not perfect an appeal of the June 1998 rating decision and it therefore became final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
A request to reopen the claim of service connection for PTSD was received in November 2000 and was denied in an April 2002 rating decision.  The Veteran did not file an appeal and the April 2002 decision regarding the denial of the claim for PTSD is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
Another request to reopen the claim of service connection for PTSD was received on August 2003 and was denied in a January 2004 rating decision.  The Veteran did not file an appeal and the January 2004 decision regarding the denial of the claim for PTSD is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
Another request to reopen the claim of service connection for PTSD was received on January 2011 and was denied in an August 2011 rating decision.  The Veteran did not file an appeal and the August 2011 decision regarding the denial of the claim for PTSD is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
A request to reopen the claim of service connection for PTSD was received on January 2, 2014.  In a January 2015 rating decision, the RO granted service connection for PTSD, effective from January 2, 2014, the date on which the Veteran’s claim to reopen had been received.
Because the August 2011 rating decision is final, under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as January 2, 2014, the date of receipt of the reopened claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
Neither the Veteran nor her representative has specifically asserted that clear and unmistakable error (CUE) was present in the initial June 1998, April 2002, January 2004 or August 2011 rating decisions to justify overturning it long after the fact.  CUE must be pled with specificity, and this has not been done.  See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002).
The Board has also determined that the record does not contain evidence of an unadjudicated formal or informal claim for entitlement to service connection for PTSD prior to January 2, 2014.  An effective date prior to the date of the reopened claim (January 2, 2014) is not warranted.  38 C.F.R. § 3.400.
The Board acknowledges the arguments set forth by the Veteran and is sympathetic to her contentions.  Under the law, however, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii).  As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which, based on the procedural history as outlined in detail above, was determined to be January 2, 2014.  See Leonard, 405 F.3d at 1333; Sears, 349 F.3d at 1326 (Fed. Cir. 2003).
As a result, based on 38 U.S.C. § 5110(a), the RO assigned the earliest effective date for the grant of service connection for PTSD permitted under the law.  38 C.F.R. § 3.400(b).  Under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as January 2, 2014, the date of receipt of the reopened claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.  As described in detail above, the preponderance of the evidence is against the Veteran’s claim for an earlier effective date.  The Veteran’s claim for an effective date earlier than January 2, 2014 for the grant of service connection for PTSD must be denied on that basis.  


Claim to Reopen
Laws and Regulations
The Veteran filed a claim for service connection for a back, coccyx and neck disability which was denied in a June 1998 rating decision.  The rating decision determined that the claim was not well grounded as the evidence failed to show that the Veteran’s back, coccyx and neck disability was related to her service.  The Veteran was notified of this decision and filed a notice of disagreement (NOD) in July 1998. A statement of the case (SOC) was issued in February 1999 and a supplemental statement of the case (SSOC) was issued in March 1999.  The Veteran filed a substantive appeal in September 1999.  However, as noted by a subsequent October 1999 rating decision, the substantive appeal was not timely.
As the Veteran did not timely perfect an appeal the June 1998 rating decision, that decision is now final based on the evidence then of record.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  
The Board notes parenthetically that the provisions of the VCAA provided for readjudication of claims that were finally denied as not well grounded between July 14, 1999 and November 9, 2000, without the need for new and material evidence. Pub.L. 106-475, § 7, Nov. 9, 2000, 114 Stat. 2099.
However, the Veteran’s claim became final on June 30, 1999 which is prior to these outlined dates.  As a result, the claim is not subject to readjudication without regard to the prior decision. Pub. L. 106-475, § 7, Nov. 9, 2000, 114 Stat. 2099.
Accordingly, the Veteran is required to submit new and material evidence to reopen the claim for service connection for a neck disability.  38 U.S.C. § 5108.
The Veteran sought to reopen her claim for service connection for a back, coccyx and neck disability in September 1999. 
An October 1999 rating decision denied the claim for service connection for a back, coccyx and neck disability as it determined that the claim was not well grounded as the evidence failed to show that the Veteran’s back, coccyx and neck disability was related to her service.  An August 2000 rating decision confirmed and continued the denial of service connection as it found that new and material evidence had not been presented.  The Veteran did not file an appeal and the August 2000 decision regarding the denial of the claim for a back, coccyx and neck disability is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
The Veteran again sought to reopen her claim for service connection for a back, coccyx and neck disability in January 2011. 
An August 2011 rating decision confirmed and continued the denial of service connection as it found that new and material evidence had not been presented.  The Veteran did not file an appeal and the August 2011 decision regarding the denial of the claim for a back, coccyx and neck disability is final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
The Veteran filed a claim to reopen her service connection for a neck disability in February 2013.
The Board parenthetically notes that a December 2014 rating decision granted service connection for degenerative disc disease and arthritis of the lumbar spine.
VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).
In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, “new” evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or “merely cumulative” of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.
The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claim is the August 2011 rating decision.  Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 
Evidence received since the August 2011 rating decision includes VA treatment records and an October 2014 VA examination.
A review of the VA treatment records reveals that they document ongoing treatment for the Veteran’s cervical spine disability.  However, they contain no references to the Veteran’s military service.  Additionally, the records do not contain any statements, lay or medical, in support of a nexus between the Veteran’s cervical spine disability and her military service.  Thus, while these records are considered new, the Board finds that they are not material.  38 C.F.R. § 3.156(a).
In her February 2013 claim to reopen, the Veteran indicated that that she had a current cervical spine disability as a result of an injury during her time in service.
However, the Board notes that these statements are duplicative of the Veteran’s previous statements that she has a cervical spine disability related to her military service.  As a result, the Board finds this evidence is not material as it does not support a competent nexus between her disability and her military service.  38 C.F.R. § 3.156(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
Finally, there is a new October 2014 VA examination report.  However, the VA examiner did not provide a potential link to the Veteran’s service as the examiner specifically opined that the Veteran’s cervical spine disability was less likely than not proximately due to her military service.  As this evidence does not support a nexus between the Veteran’s cervical spine disability and her military service, it is not material.  38 C.F.R. § 3.156(a).
As a result, the Board finds that the evidence received since the August 2011 rating decision is new as it was not of record at the time of the prior denial, but the newly submitted evidence is not material as it is cumulative and redundant in nature of the record in August 2011.  To the extent that the evidence relates to the reason the claim was previously denied, the new evidence does not raise a reasonable possibility of substantiating the claim for service connection for a cervical spine disability.  
Significantly, competent evidence that any current cervical spine disability is related to service has not been added to the record.  Overall, there is no competent evidence or opinion suggesting that any current cervical spine disability is in any way related to her service.
Accordingly, the Veteran’s request to reopen the previously disallowed claim of entitlement to service connection for a cervical spine disability is denied because none of the newly submitted evidence pertains to the reasons for the prior denials nor raises the reasonable possibility of substantiating the Veteran’s underlying claim.  See 38 C.F.R. § 3.156(a) (2017).  As the Veteran has not fulfilled her threshold burden of submitting new and material evidence to reopen the finally disallowed claim of service connection for a cervical spine disability, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
In sum, absent any new and material evidence showing that the cervical spine disability is due to service, the claim for service connection for a cervical spine disability cannot be reopened.  See 38 C.F.R. § 3.156(a) (2017).  

Service Connection
Laws and Regulations
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.”  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury.  Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). 
In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.
This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).
A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.  The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service.
An important distinction between section 1111’s aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof.  Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service.  Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.  Horn v. Shinseki, 25 Vet. App. 231, 235 (2014).
A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
Factual Background
The Veteran contends that she has a TBI with associated headaches as a result of an in-service injury where she was hit on the head by a pipe in 1986 while she was in Italy.  
The Veteran’s service treatment records demonstrate that she was seen on multiple occasions for headaches, complaints of congestion and for viral infections.
Additionally, in May 1985 she received treatment after falling off of a ladder while carrying a can of paint.
Notably, both her August 1984 enlistment examination and May 1991 separation examination were negative for complaints, treatments or diagnoses related to a TBI or headaches.
In a June 2014 VA TBI/Polytrauma evaluation, the physician found that the criteria for a TBI were met.  The Veteran reported that potential TBI events occurred in 1989, 2006, 2009 and 2010.
The Veteran underwent a VA examination in October 2014.  The examiner found that the Veteran possibly had a TBI but this was not confirmed as no specific residuals were noted in the general medical examination.  The examiner noted that the Veteran reported being hit on the head by a pipe in Italy where she might have lost consciousness for 5 minutes.  She also described incidents where she fell down stairs and had assaults that included head injuries.  The examiner noted that much of these reports was difficult to confirm via record review.  The examiner did note that the Veteran was not describing or demonstrating any specific residual, status post TBI that may have occurred while in military service by way of a general medical examination.  The Veteran did describe a history of headaches but also reported that she had experienced migraine headaches since she as 8 years old.  There was no evidence of any change in the severity, character or frequency of these headaches as it may relate to any head injuries that occurred in military service.  She also described instances of syncope but these did not begin until 2002 and therefore were less likely related to any possible head injury that may have occurred while on active duty. The examiner noted that while the Veteran described a history of some head injuries, there was no evidence of any residual status post TBI that may have occurred while on active military duty.  
On a VA mental examination in October 2014, the examiner noted that a psychiatrist at the VA polytrauma clinic found that the Veteran had a history of TBI.  The examiner however reviewed the extensive neuropsychological evaluation and found that the evaluation was not consistent with any residual effects due to historical TBI.  Notably, emotional factors were noted for the variability amongst the Veteran’s testing results.  On psychomotor testing, the Veteran exhibited major depressive disorder and PTSD and the Veteran had no TBI residuals for the template for criteria I through VI and VIII through X.  
In a November 2014 opinion, a VA examiner indicated that the Veteran’s service treatment records did contain an entry from 1988 that described an incident in which the Veteran was struck on the back of the head by a ladder that fell.  However, the evidence of record clearly delineated that there was no loss of consciousness and there was no alteration of consciousness.  There was no ecchymosis nor was there any evidence of any neurological deficit resulting from that injury.  The examiner further noted that a review of the service treatment records did not note any ongoing issues or sequelae from the incident that occurred in 1988 that would suggest that the Veteran suffered a concussion, TBI or any other neurological deficit or disorder as a result of that incident or trauma.  The examiner opined that it was less likely than not that the Veteran’s TBI/neurological condition was due to or the result of head trauma or injury that occurred as documented in her service treatment records in 1988.  The examiner found that there was simply no medical basis or preponderance of medical evidence to support that the injury or incident in which the Veteran was struck by a ladder while on active duty in 1988 was sufficient to cause a concussion or TBI with any ongoing neurological sequelae.  
1. Traumatic Brain Injury (TBI)
When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a TBI disability is not warranted.
The Board initially notes that there is some question as to whether the Veteran has a current diagnosis of a TBI.  As noted above, a June 2014 VA TBI/Polytrauma evaluation found that the Veteran met the criteria for a TBI.  Conversely, the October 2014 VA examiner indicated that he reviewed the extensive neuropsychological evaluation and found that the evaluation was not consistent with any residual effects due to historical TBI.
However, when affording the Veteran the benefit of the doubt, the Board finds that she has a current diagnosis of TBI.  Accordingly, as there is a diagnosis of TBI, the first element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).
The Board notes that the Veteran’s service treatment records demonstrate that the Veteran had instances where she experienced falls or trauma.  Notably, the November 2014 VA examiner specifically indicated that the Veteran’s service treatment records contained an entry from 1988 that described an incident in which the Veteran was struck on the back of the head by a ladder that fell.  
However, despite these complaints, the service treatment records were negative for any or diagnoses of any chronic TBI disability.  The record reflects that her head trauma complaints were medically addressed in service.  Notably, the Veteran’s May 1991 separation examination is negative for complaints, treatments or diagnoses related to a TBI.  
The Board finds that the weight of the evidence is against a finding that the Veteran’s current TBI disability is etiologically related to the Veteran’s military service.  In fact, the only medical opinions addressing the etiology of the disability weigh against the claim.  As noted above, the October 2014 VA examiner noted that while the Veteran described a history of some head injuries, there was no evidence of any residual status post TBI that may have occurred while on active military duty.  Additionally, the November 2014 VA examiner opined that it was less likely than not that the Veteran’s TBI/neurological condition was due to or the result of head trauma or injury that occurred as documented in her service treatment records in 1988.  The examiner specifically noted that there was simply no medical basis or preponderance of medical evidence to support that the injury or incident in which the Veteran was struck by a ladder while on active duty in 1988 was sufficient to cause a concussion or TBI with any ongoing neurological sequelae.
None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented any such existing medical evidence or opinion.  While the June 2014 VA TBI/Polytrauma evaluation found that the Veteran met the criteria for a TBI, no etiology opinion was provided and it was also noted that the Veteran reported multiple head trauma incidents that occurred after her service.
Parenthetically, the Board also notes that while the Veteran is service-connected for PTSD, the October 2014 VA examiner specifically determined that the Veteran’s PTSD and major depressive disorder symptoms were entirely separate from the TBI residuals.
In sum, the Board finds that service connection for a TBI disability must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 
2. Migraine Headaches Associated with TBI
Under the circumstances of this case, the Board concludes that service connection is not warranted for a migraine headaches disability.
As there is a current diagnosis of a migraine headache disability, the first element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between her military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).
Initially, the Board notes that the October 2014 VA examiner noted that the reported that she had experienced migraine headaches since she as 8 years old. However, the Veteran’s August 1984 induction examination was negative for complaints, treatments or a history of a headache disability and the Veteran’s Report of Medical History at the time was negative for a headache condition.  As such, there is no indication that the Veteran had any chronic headache disability that preexisted her period of service.  Therefore, the presumption of soundness is not rebutted and the claim becomes one for service connection on a direct basis rather than a claim based on in-service aggravation of a preexisting disability.  See Wagner, supra.   
The Board parenthetically notes that even if it was found that a headache disability preexisted her service, the October 2014 specifically indicated that there was no evidence of any change in the severity, character or frequency of these headaches as it may relate to any head injuries that occurred in military service.
Regarding service connection on a direct basis, the Veteran’s service treatment records demonstrate that she presented on multiple occasions with complaints of headaches as well as episodes of trauma.  
However, despite these complaints, the service treatment records were negative for any or diagnoses of any chronic migraine headache disability.  The record reflects that her headache complaints were medically addressed in service and the Veteran’s May 1991 separation examination is negative for complaints, treatments or diagnoses related to migraine headaches.  
The Board finds that the weight of the evidence is against a finding that the Veteran’s current migraine headaches disability is etiologically related to the Veteran’s military service.  In fact, the only medical opinions addressing the etiology of the disability weigh against the claim. As noted above, the November 2014 VA examiner opined that it was less likely than not that the Veteran’s neurological condition was due to or the result of head trauma or injury that occurred as documented in her service treatment records.  
None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented any such existing medical evidence or opinion.  
In short, there is simply no credible or evidence or opinion even suggesting a relationship between any headache disability and service and neither the Veteran nor her representative has identified, presented, or alluded to the existence of any such medical evidence or opinion.  
As a result, the Board finds that service connection for a migraine headaches disability on a direct basis must be denied.  
Finally, the Veteran is also claiming service connection for a migraine headache disability on a secondary basis as a symptom of her TBI. 
As noted above, service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability.  38 C.F.R. § 3.310 (2017).  
The record demonstrates that the Veteran’s headaches have been associated with her TBI.  However, the Veteran is not currently service connected for a TBI disability.  As addressed above, the Board is denying the Veteran’s claim for service connection for a TBI disability on the basis that there is no competent evidence that this disability is related to her service.  Hence, as a matter of law, the claim for service connection for a migraine headache disability as secondary to a TBI disability is without legal merit, and must be denied as a matter of law.  See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
As a result, the Board finds that service connection for migraine headache disability on a secondary basis is not warranted.
In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for migraine headaches.  The benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b). 
3. All Disabilities
The Board notes the Veteran’s contentions regarding the etiology of her claimed TBI and migraine headache disabilities.  To the extent that the Veteran herself contends that a medical relationship exists between her claimed current disabilities and service, the Board acknowledges that the Veteran is competent to testify as to her observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that TBI and migraine headache disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. 
 More significantly, the Veteran and her representative do not have the medical expertise to provide an opinion regarding the claimed TBI and migraine headache disabilities etiologies.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  Additionally, the VA examiners provided detailed rationales in support of their opinions and cited to the relevant evidence.  For this reason, the VA examiners’ opinions are the most probative evidence of record.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion).  
In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a TBI and migraine headache disabilities.  The benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C. § 5107(b).  


Increased Rating
Laws and Regulations
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017). 
The Veteran’s entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2017).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2017).  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 disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).
Where there is a question as to which of two 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 (2017).
In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  She is also competent to report symptoms of her lumbar spine disability and endometriosis.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe her symptoms and their effects on employment or daily activities.  Her statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal.
The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.
1. Lumbar Spine
In a December 2014 rating decision, the RO granted service connection for degenerative disc disease and arthritis of the lumbar spine at an initial 10 percent disability evaluation, effective August 7, 2013 under Diagnostic Code 5242. 
The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. 
Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is assignable for unfavorable ankylosis of the entire spine.  These criteria are applied with and 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.  38 C.F.R. § 4.71a.  These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive “or” requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met]. 
Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. 
The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). 
Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part):  a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted 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 warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 
Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 
The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.  Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule.  See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). 
Factual Background and Analysis
The Veteran underwent a VA examination in January 1998.  On examination, her back had some tenderness but no spasm.  Flexion was from 0 to 95 degrees.  She could “bend” 15 degrees in either direction and “twist” in 30 degrees in either direction.  She had symmetrical reflexes in her upper and lower extremities, normal gross sensation and normal gross strength.  
The Veteran underwent a VA examination in January 2014.  It was noted that the Veteran had degenerative arthritis of the spine.  She reported having back pain of 3/10 on a good day and back pain of 10/10 on a bad day.  She reported that she had an “achy” type of low back pain each day.  She had epidural steroid injections in 2013 which provided some relief.  She reported flare ups with repeated bending, prolonged standing or sitting.  She also reported that cold weather could flare up her back.  Flexion was from 0 to 80 degrees with evidence of painful motion beginning at 70 degrees.  Extension was from 0 to 20 degrees with no objective evidence of painful motion.  Right and left lateral flexion was from 0 to 25 degrees with no objective evidence of painful motion.  Right and left lateral rotation was from 0 to 25 degrees with no objective evidence of painful motion.  The Veteran was able to complete repetitive-use testing and there was no additional limitation of range of motion.  She had functional impairment as there was less movement than normal and pain on movement.  There was no localized pain or tenderness on palpation and no muscle spasms or guarding resulting in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal and there was no muscle atrophy. Reflexes and the sensory examination were normal.  There was no radiculopathy and no ankylosis.  The Veteran did not have intervertebral disc syndrome.  The examiner found that the Veteran’s lumbar spine disability did not impact her ability to work.
The Veteran underwent a VA examination in March 2016.  It was noted that the Veteran had degenerative arthritis of the spine.  She reported that she was going to start having cortisone shots for her back in the next few months.  She reported flare ups with prolonged standing or sitting.  She also reported that she had functional impairment as she had a loss of motion.  Flexion was from 0 to 70 degrees.  Extension was from 0 to 20 degrees.  Right and left lateral flexion and right and left lateral rotation was from 0 to 25 degrees.  The range of motion itself did not contribute to functional loss as pain was noted on the examination but it did not result in functional loss.  There was mild paralumbar tenderness.  The Veteran was able to complete repetitive-use testing and there was no additional limitation of range of motion.  The examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups.  There were no muscle spasms or guarding resulting in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal and there was no muscle atrophy. Reflexes and the sensory examination were normal.  There was no radiculopathy and no ankylosis.  The Veteran did not have intervertebral disc syndrome and did not use assistive devices.  The examiner found that the Veteran’s lumbar spine disability did not impact her ability to work.
The Veteran underwent a VA examination in February 2017.  It was noted that the Veteran had degenerative arthritis of the spine and intervertebral disc syndrome.  She reported that she had been doing landscaping work but had trouble lifting because of pain in the lower back and across both sides.  She missed some days of work because of the pain.  She used heat and rest to her lower back which had helped.  The Veteran did not lift anything over 10 pounds and she reported that even sitting or standing caused back pain.  She noted that she did not sleep well because of back pain regardless of her position.  She described worsening symptoms as it was difficult to do housework and she had pain going into her left gluteal area and numbness the back of her leg into her toes.  She did not report flare-ups of the thoracolumbar spine but noted functional limitations due to lifting, stooping, and bending which caused severe sharp pain in the lower lumbar spine.  Flexion was from 0 to 90 degrees.  Extension was from 0 to 25 degrees.  Right and lateral flexion was from 0 to 30 degrees and left lateral flexion was from 0 to 25 degrees. Right lateral rotation was from 0 to 30 degrees and left lateral rotation was from 0 to 25 degrees.  Range of motion contributed to functional loss as the more extensive the range of motion there was, the more functional loss resulted.  There was localized tenderness on the left hip side of the spine. The Veteran was able to complete repetitive-use testing and there was no additional limitation of range of motion.  The examiner was not able to opine as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as the examination did not take after repeated use over a period of time.  The examiner found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups.  
There were no muscle spasms or guarding.  The Veteran had tenderness but it did not result in an abnormal gait or abnormal spinal contour.  Muscle strength testing was normal and there was no muscle atrophy. The sensory examination was normal but she had hypoactive reflexes.  There was no radiculopathy and no ankylosis.  The Veteran had intervertebral disc syndrome but she did not have any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician over the past 12 months. The Veteran used a walker because of a syncope episode.  The examiner found that the Veteran’s lumbar spine disability impacted her ability to work as she could not lift anything over 10 pounds and had pain when she vacuumed.  The examiner noted that the Veteran’s lumbar spine disability prevented her from moving in all directions and as a result she stated that she had difficulty doing work which even included house work.  
Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairments at her February 2017 VA examination, the Board finds that when affording the Veteran the benefit of the doubt, that a 20 percent rating is warranted for the Veteran’s service-connected low back disability.  
The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).  Such impairment was not documented as forward flexion of the thoracolumbar spine on VA examination in February 2017 was from 0 to 90 degrees.  However, the February 2017 VA examiner also reported that the Veteran had but had trouble lifting because of pain in the lower back and across both sides and missed some days of work because of the pain.  The examiner also noted that the Veteran did not lift anything over 10 pounds and that she reported that even sitting or standing caused back pain.  While the Veteran did not report flare-ups of the thoracolumbar spine, she noted functional limitations due to lifting, stooping, and bending which caused severe sharp pain in the lower lumbar spine.  While the examiner failed to opine as to whether pain could significantly limit functional ability during flare-ups or when it was used repeatedly over a period of time and provide such limitations in terms of degrees, the Board finds that a 20 percent rating is warranted based on the reported symptomatology of the Veteran’s reported functional impairment and flare-ups at her February 2017 VA examination.
Therefore, in consideration of pain, weakness, and fatigue, the Board finds that a 20 percent rating is warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  
However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher evaluation in excess of 20 percent for a lumbar spine disability.
The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent at any time relevant to the decision as the Veteran has not met the criteria under the general rating code.
Regarding the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).  Such impairment was simply not documented as forward flexion of her thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability.
The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7.  Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates her for the extent of functional loss resulting from any such symptoms.  Although it was noted on the VA examination reports that the Veteran exhibited pain on lumbar spine motion and had functional loss due to pain, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  
Since flexion has not been limited to 30 degrees or less even after repetitive use; and the Veteran’s spine is not ankylosed since she has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for a rating in excess of a 20 percent evaluation have not been met.  Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of her low back disability.
While the Veteran reported flare ups at her March 2016 VA examination, the examiner notably found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups.  Additionally, the Board notes that while the March 2016 VA examiner did not provide range of motion estimates in degrees regarding flare-ups and the February 2017 VA examiner did not provide range of motion estimates in degrees after repetitive use over time, such is understandable.  Notably, while the VA examiners did not provide range of motion estimates in degrees and with repetitive use over time, the Veteran was able to perform repetitive-use testing with repetitions and the noted range of motion estimates in degrees after repetitive use over time were the same as the motions prior to repetitive use testing.  
Regarding the February 2017 VA examination, the VA examiner noted that he was unable to express range of motion in degrees during a flare-up or after repeated use as the Veteran was not being examined during flare-ups or after a period of time.  The Board finds these explanations adequate for why the examiner could not offer range of motion estimates.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent some indication of such by the examiner or report of such by the Veteran, neither of which is present in this case.  
Additionally, while on the March 2016 VA examination the Veteran reported flare-ups, the February 2017 VA examiner noted that there were no reports of flare-ups.  
In addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and she had not identified that she has loss of motion to the degree required for a higher rating in excess of 20 percent.  
The Board again acknowledges that the Veteran had pain, weakened movement and less movement than normal.  This is well documented in the lay and medical evidence.  Furthermore, the Board again accepts that she has functional impairment, pain and limited motion as demonstrated by the VA examinations.  See DeLuca, supra.  The Board further finds that the Veteran’s own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for evaluations in excess of 20 percent.
The Board notes that for this period, there is no evidence of muscle atrophy or guarding and the Veteran was able to perform repetitive use testing on all VA examinations.  
Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran’s functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. 
Therefore, the Board finds that the overall impairment resulting from her back disability would still more closely approximate no more than a 20 percent rating.
With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. 
Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic findings.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017).  
Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  
However, while the February 2017 VA examiner found that the Veteran now had intervertebral disc syndrome, the examiner also noted that during the past 12 months, there were no incapacitating episodes for the thoracolumbar spine region.
Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran’s service-connected thoracic spine disability because the evidence of record does not document incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 
Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment.  Notably, the January 2014 and March 2016 VA examiners specifically determined that the Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy as muscle strength, reflexes and sensory examinations were all normal.  On VA examination in February 2017, the Veteran presented with complaints that she had pain going into her left gluteal area and numbness the back of her leg into her toes while her reflexes were noted to be hypoactive.  However, despite these complaints, the February 2017 VA examiner VA examiner specifically determined that the Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy as muscle strength and sensory examinations were normal.
As a result, the Veteran was found to not have radiculopathy associated with her lumbar spine disorder and she had no other neurologic abnormalities or findings related to a thoracolumbar spine disability.  As such, separate ratings for neurological findings are not warranted.
In sum, an evaluation in excess of 20 percent rating for a low back disability is not warranted.  
Accordingly, the Board finds that the evidence supports the assignment of an initial 20 percent rating for a low back disability.  However, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 20 percent for a low back disability.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).

2. Endometriosis
Service connection for endometriosis was established in a June 1998 determination, which assigned an initial noncompensable, effective June 30, 1997, under Diagnostic Code 7629, 38 C.F.R. § 4.124a.  Thereafter, a May 2010 determination assigned a higher rating of 10 percent, effective November 1, 1999. 
The Veteran filed a claim for an increased rating on August 7, 2013.
Finally, a January 2015 determination decreased the rating from 10 to 0 percent, effective December 31, 2014.
VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered.  38 C.F.R. § 3.105 (e).  In this case, however, while the January 2015 rating decision decreased the rating for endometriosis, the Board notes that the Veteran’s overall disability rating, and thus, compensation payments, did not decrease as a result of that decision.  Notably, the January 2015 rating also granted service connection for PTSD at an initial 50 percent disability rating, effective January 2, 2014 and granted service connection for scars due to a laparoscopic hysterectomy at an initial noncompensable evaluation, effective December 31, 2014.
Prior to the January 2015 rating decision, the Veteran’s combined rating was 40 percent.  The January 2015 rating decision resulted in a higher combined rating of 70 percent, effective January 2, 2014. Therefore, the amount of compensation received did not decrease and this appeal is not subject to the laws for reductions in disability compensation. Id.; see VAOPGCPREC 71-91 (Nov. 7, 1991) (holding that where a reduction for a single disability does not affect the combined disability rating or level of compensation paid to the Veteran). 
Under Diagnostic Code 7629, a 10 percent disability rating is assigned where the endometriosis is manifested by pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  A 30 percent disability rating is assigned where the endometriosis is manifested by pelvic pain or heavy or irregular bleeding not controlled by treatment.  A maximum schedular 50 percent disability rating is assigned where the endometriosis is manifested by lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms.  38 C.F.R. § 4.116.
In every instance where the schedule does not provide a 0 percent disability rating for a diagnostic code, a 0 percent disability rating shall be assigned when the requirements for a compensable disability rating are not met.  38 C.F.R. § 4.31 (2017).
Factual Background and Analysis
The Veteran underwent a VA examination on December 31, 2014.  The examiner noted a diagnosis of endometriosis.  The examiner specifically noted that the Veteran had a history of endometriosis in the past as she underwent a hysterectomy in 2006 and a pathology report at that time confirmed endometriosis.  However, the examiner indicated that the Veteran did not have any ongoing problems with endometriosis since that time.  The Veteran denied any complications or residuals from the surgery.  She had experienced serious problems with anemia in the past but this had resolved with her hysterectomy surgery.  The examiner specifically found that the Veteran did not currently have any symptoms related to a gynecological condition.  She did not currently require any treatments or medication for a reproductive tract condition.  The examiner noted that while the Veteran had been diagnosed with endometriosis, she currently did not have any findings, signs or symptoms due to endometriosis.  The examiner indicated that the Veteran’s gynecological disability did not impact her ability to work. 
Period prior to December 31, 2014
As noted above, the Veteran has a 10 percent disability rating for her service-connected endometriosis for the period prior to December 31, 2014.
The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s service-connected endometriosis disability for the period prior to December 31, 2014.
In order to warrant an increased 30 percent rating for endometriosis under Diagnostic Code 7629, the endometriosis needs to be manifested by pelvic pain or heavy or irregular bleeding not controlled by treatment.
For the period prior to December 31, 2014, this has not been demonstrated.  
Notably, for the period under appeal for the Veteran’s claim for an increased rating which was received by the Board in August 2013, the record is silent for treatments or complaints related to the Veteran’s endometriosis.
Additionally, as evidenced by the December 2014 VA examination, the Veteran was noted to have abnormal bleeding which required a hysterectomy in 2006.  However, since the 2006 hysterectomy, the Veteran did not have any ongoing problems with endometriosis since that time and she specifically denied any complications or residuals from the surgery.  
As there is no evidence that the Veteran’s endometriosis had resulted in pelvic pain or heavy or irregular bleeding not controlled by treatment for the period prior to December 31, 2014, the Board finds that a rating in excess of 10 percent is not warranted.
As a result, the Board finds that the Veteran’s claim for entitlement to a rating in excess of 10 percent for service-connected endometriosis for the period prior to December 31, 2014 must be denied.  
As the preponderance of the evidence is against the claim for a rating in excess of 10 percent for service-connected endometriosis for the period prior to December 31, 2014, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Period since December 31, 2014
As noted above, the Veteran has a noncompensable disability rating for her service-connected endometriosis for the period prior to December 31, 2014.
The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s service-connected endometriosis disability for the period since December 31, 2014.
As indicated above, a 10 percent disability rating is warranted for endometriosis under Diagnostic Code 7629 when the endometriosis is manifested by pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  
However, as evidenced by the December 2014 VA examination, the evidence does not demonstrate pelvic pain or heavy or irregular bleeding that required continuous treatment for control.  The December 2014 VA examiner specifically found that while the Veteran had been diagnosed with endometriosis, she currently did not have any findings, signs or symptoms due to endometriosis.  Additionally, it was noted that she did not currently require any treatments or medication for a reproductive tract condition and she did not currently have any symptoms related to a gynecological condition.  
As a result, the Board finds that the Veteran’s claim for entitlement to a compensable rating for service-connected endometriosis for the period since December 31, 2014 must be denied.  
As the preponderance of the evidence is against the claim for an increased compensable rating for the period since December 31, 2014, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal.
In a January 2015 rating decision, the RO, in part, granted service connection for scars due to laparoscopic hysterectomy at an initial noncompensable disability evaluation, effective December 31, 2014.
In November 2015, the Veteran filed a notice of disagreement (NOD) as to the January 2015 rating decision regarding the initial noncompensable disability evaluation for residuals of a hysterectomy.
As a result, while the Veteran expressed disagreement with the January 2015 rating decision, it appears that no subsequent statement of the case was ever issued regarding the issue of entitlement to an initial compensable rating for scars due to laparoscopic hysterectomy.  
Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issue of entitlement to an initial compensable rating for scars due to laparoscopic hysterectomy remains pending in appellate status and require further action.  See 38 U.S.C. § 7105; 38 C.F.R. § 19.26.  In this regard, it is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal.  The Board’s actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. 
Regarding the Veteran’s claim for an initial higher rating for PTSD, the Board notes that the Veteran’s last examination which assessed the current severity of her PTSD disability took place in October 2014. 
However, subsequent treatment records indicate a possible worsening of her service-connected PTSD disability since her last VA examination in October 2014.
Notably, on a March 2017 VA social work risk assessment screening note, the treating provider noted that the Veteran had reported 5 past hospitalizations for suicidal ideation and/or attempts.  While the Veteran expressed having no current suicidal thoughts or plans of harming herself, it was noted that she would continue receiving psychiatric therapy for her disability.
Given that the Veteran appears to be receiving continued treatment for her PTSD disability and there appears to be a possible worsening of this disability, the Board finds that a new VA examination would be probative.  Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected PTSD disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”).
Additionally, the Board notes that further development and adjudication of the Veteran’s claims for higher initial evaluations for scars due to laparoscopic hysterectomy and PTSD may provide evidence in support of her claim for TDIU.  See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined.  The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue.  
The matter is REMANDED for the following action:
1. The RO should issue a statement of the case to the Veteran addressing the matter of entitlement to an initial compensable rating for scars due to laparoscopic hysterectomy, including citation to all relevant law and regulation pertinent to the claim.  The Veteran must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order.
2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  
Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review.
3.  After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination before appropriate physician(s) to determine the current level of severity of her service-connected PTSD disability.  
The Veteran’s claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with this examination, and the examination report should reflect review of these items.  All necessary tests and studies should be performed, and the examiner(s) should describe in detail all symptomatology associated with the Veteran’s PTSD disability.
The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected PTSD disability on her ability to work. 
4.  After completion of the above and any additional development deemed necessary, the issues on appeal, to include entitlement to a TDIU, should be reviewed with consideration of all applicable laws and regulations.  If any benefit sought remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to 
 
respond.  Thereafter, the case should be returned to the Board for appellate review, if in order.


 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	James A. DeFrank, Counsel