Citation Nr: 18151522 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-30 760 DATE: November 19, 2018 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected degenerative disc disease of the lumbosacral spine, is granted. Entitlement to service connection for bipolar disorder is granted. Entitlement to service connection for headaches is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for diabetes is denied. Entitlement to an increased disability rating for degenerative arthritis of the lumbosacral spine, currently rated as 20 percent disabling, is denied. REMANDED The issue of entitlement to service connection for arthritis is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least at relative equipoise as to whether the Veteran’s sleep apnea is proximately due to or the result of his service-connected degenerative disc disease of the lumbosacral spine. 2. The probative evidence of record is at least in relative equipoise as to whether the Veteran’s bipolar disorder is etiologically related to an in-service injury, event, or disease. 3. The competent evidence of record does not demonstrate a headache disability proximate to the claim, or during the appeal period. 4. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a bilateral hip disability etiologically related to an in-service injury, event or disease. 5. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has diabetes etiologically related to an in-service injury, event or disease. 6. For the entire period on appeal, the evidence of record shows that the Veteran’s service-connected lumbar spine disability manifested in pain and limitation of motion with forward flexion of greater than 30 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, as secondary to service-connected degenerative disc disease of the lumbosacral spine, have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for bipolar disorder, have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. The criteria for entitlement to service connection for headaches, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for entitlement to service connection for a bilateral hip disability, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. The criteria for entitlement to service connection for diabetes, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 6. The criteria for entitlement to a higher disability rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Codes 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to June 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran’s claims file is currently under the jurisdiction of the Nashville, Tennessee RO. In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran’s appeal as to service connection for sleep apnea has been expanded to include entitlement to service connection under the theory of secondary service connection, and has been characterized as stated above. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case a May 2016 VA treatment record reflects that the Veteran is currently unemployed and that he desired to get a job that is not affected by his service-connected low back disability. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). 1. Entitlement to Service Connection for Sleep Apnea The Veteran contends that he has sleep apnea that is directly related to his active service, or in the alternative, that he has sleep apnea that is secondary to his service-connected low back disability. See Correspondence, received October 2016. The evidence of record shows that the Veteran has a current diagnosis of sleep apnea. See, e.g., June 2016 VA examination. Therefore, there is evidence of a current disability. The Veteran was provided a private examination related to his sleep apnea in October 2016. The private examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The private examiner noted that the Veteran takes opioid medication due to his service connection lumbar spine disability and stated that the medication results in increased respiratory pauses, irregular breathing, and shallow breaths. The private examiner noted that the medical literature states that abnormal sleep architecture has been reported during the process of opioids induction, maintenance and withdrawal. Based on the review of the medical literature, Veteran interview, and review of the claims file, the private examiner opined that the Veteran’s sleep apnea is more likely than not secondary to the Veteran’s narcotic medication for pain caused by his service-connected disabilities. The Board finds that the private examiner’s opinion is due probative weight because it is based on an accurate understanding of the Veteran’s particular medical history, is consistent with the record, and is based on his expertise as a physician. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board acknowledges that the Veteran was provided a VA examination in June 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination and opined that the Veteran’s sleep apnea is less likely than not incurred in or caused by his active military service. However, the June 2014 VA examiner did not provide an opinion as to whether the Veteran’s sleep apnea is secondary to his service-connected disabilities. As such, the Board affords relatively little probative weight to the June 2014 VA examination and opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In view of the foregoing, the Board finds that the probative evidence of record is at least at relative equipoise as to whether the Veteran’s sleep apnea is proximately due to or the result of his service-connected low back disability. Therefore, any remaining doubt must be resolved in the Veteran’s favor, and the Board concludes that entitlement to service connection for sleep apnea, as secondarily caused by or proximately due to the service-connected low back disability, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310 (a); see also Gilbert, 1 Vet. App. 49 (1990). 2. Entitlement to Service Connection for Bipolar Disorder The Veteran contends that he has bipolar disorder that had its onset during his active military service. See Correspondence, received October 2016. The evidence of record shows that the Veteran has a current diagnosis of bipolar disorder. See, e.g., September 2016 Private Examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran’s service treatment records reveal that the Veteran complained of depression or excessive worry and nervous trouble on his April 1986 report of medical history. Accordingly, there is also evidence of an in-service injury in the form of depression and nervous trouble, and the issue remaining for consideration as to direct service connection is whether the Veteran’s current bipolar disorder is etiologically related to the in-service injury. With respect to a nexus between the Veteran’s bipolar disorder and in-service depression and nervous trouble, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In favor of a nexus is a September 2016 private examination. The private examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The private examiner diagnosed the Veteran with bipolar disorder and opined that the condition more likely than not began in military service and continued uninterrupted to the present. As rationale, the VA examiner noted that the Veteran’s entrance examination did not note any mental health issues and his separation examination noted depression/worry, trouble sleeping and nervous trouble. The private examiner also reviewed the medical literature relating to mental health symptoms within active duty servicemen. Against a finding of nexus is a June 2016 VA examination. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner provided a provisional diagnosis of bipolar disorder and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner stated that the Veteran was not treated for bipolar disorder during his active service. The VA examiner further stated that if the Veteran has bipolar disorder it is a condition with strong genetic/hereditary component. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that “asthma” was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that “bunions” were noted at induction examination where orthopedic examiner diagnosed “bunions,” despite also stating “no problem [with] feet.”). In this case, the March 1983 induction examination shows that the Veteran was rated as normal for psychiatric conditions. The report is absent for any indication or complaints of a psychiatric condition. Additionally, in the November 1983 report of medical history, the Veteran did not report a history of depression, excessive worry or any other psychiatric condition. Accordingly, the presumption of soundness applies to the Veteran as to any psychiatric condition. The Board finds that the September 2016 private examination to be probative in showing that the Veteran’s bipolar disorder is etiology related to his active service. The private examiner reviewed the Veteran’s record, interviewed the Veteran and conducted an in-person examination and the conclusions are consistent with the Veteran’s treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derives from a factually accurate, fully articulated, and soundly reasoned opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Additionally, the Board affords little probative weight to the June 2016 VA examination since there is no evidence in the Veteran’s service treatment record that he suffered from bipolar disorder prior to his entrance into active service. Furthermore, the Board finds no reason to afford greater probative weight to the June 2016 VA examiner’s statement that the Veteran only has a preliminary diagnosis of bipolar disorder. In summary, given the complaints of depression during active service, the Board finds that the probative evidence to be in equipoise as to whether his current bipolar disorder had its onset during active service. The provisions of 38 C.F.R. § 3.303 (d) direct that 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. As the evidence is in relative balance as to whether the Veteran’s current psychiatric disability, diagnosed as bipolar disorder, had its onset in service, the benefit-of-the-doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for bipolar disorder is granted. 3. Entitlement to Service Connection for Headaches The Veteran contends that he has headaches that are directly related to his active service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence of record does not contain probative evidence of a headache disability at any time proximate to, or during, the claim. During the pendency of the claim the Veteran complained of headaches. See, e.g., VA treatment record, dated February 2015. However, the VA treatment records do not contain a diagnosed disability related to the Veteran’s symptom of headaches. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran has a current headache disability that had its onset during active service or that there is a current headache disability that is otherwise causally or etiologically related to his active service. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his headaches. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no indication of a current disability, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for headaches have been met. 38 C.F.R. § 3.159 (c) (4). The Board acknowledges the Veteran’s assertions that he has a headache disability. However, he has not been shown to have the medical training and knowledge required to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37. Therefore, his assertions are not considered competent and do not weigh against the probative value of the medical treatment records, including the VA treatment records, which do not show a diagnosis of a headache disability. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Veteran has this complaint, a complaint, or symptoms, is not a “disability” for VA purposes. The Board cannot grant service connection for a symptom. Although the Board recognizes the Veteran’s sincere belief in his claim, the most probative evidence of record does not show that he had headache disability at any point during or in proximity to the appeal period. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is an absence of proof of a headache disability during or in proximity to the appeal period. Without evidence of a current diagnosis of a headache disability the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to Service Connection for a Bilateral Hip Disability The Veteran contends that he has a bilateral hip disability that is directly related to his active service. The evidence of record shows that the Veteran was diagnosed with bilateral hip flexion contractures. See March 2007 VA treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, a review of the Veteran’s service treatment records does not reflect any symptoms, complaints or treatment for a bilateral hip condition. The Veteran’s March 1986 separation examination reflects that his lower extremities were normal. Additionally, the Veteran stated he was in good health. The earliest indication in the record that the Veteran suffers from a bilateral hip condition is the March 2007 VA treatment record. In summary, the service treatment records do not reflect in-service complaints of a bilateral hip condition. The earliest evidence of record of a bilateral hip condition is a March 2007 VA treatment record noting that the Veteran has bilateral hip flexion contractures. The VA treatment record is more than 20 years after the Veteran separated from active service. Therefore, there is evidence of a current bilateral hip disability, but there is no evidence of an in-service injury, illness or disease to which the current bilateral hip disability may be medically attributed. Rather, the evidence suggests that the Veteran did not have a bilateral hip disability until more than two decades after his active military service. The only evidence indicating an association between the current bilateral hip disability and his active service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of bilateral hip flexion contractures is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of hip flexion contractures. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current bilateral hip flexion contractures are etiologically related to his active service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his bilateral hip disability. On these facts, however, an examination is not required. In this case, the claims do not meet the requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no bilateral hip disability in service, and that the symptoms of a bilateral hip disability were not present for many years thereafter, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that an additional VA examination or opinion is not necessary for disposition of the claims. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for a bilateral hip disability has been met. 38 C.F.R. § 3.159 (c) (4). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral hip disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to Service Connection for Diabetes The Veteran contends that he has diabetes that is directly related to his active service. The evidence of record shows that the Veteran has a current diagnosis of diabetes mellitus, type II. See, e.g., February 2014 VA treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, a review of the Veteran’s service treatment records does not reflect any symptoms, complaints or treatment for the endocrine system. The Veteran’s March 1986 separation examination reflects that his endocrine system was normal. Additionally, the Veteran stated he was in good health. The earliest indication in the record that the Veteran suffers from diabetes is an August 2009 VA treatment record reflecting an assessment of diabetes mellitus, type II. In summary, the service treatment records do not reflect in-service complaints of an endocrine system disability. The earliest evidence of record of diabetes is an August 2009 VA treatment record noting an assessment of diabetes mellitus, type II. The VA treatment record is more than 20 years after the Veteran separated from active service. Therefore, there is evidence of a current disability, but there is no evidence of an in-service injury, illness or disease to which the current disability may be medically attributed. Rather, the evidence suggests that the Veteran did not have diabetes until more than two decades after his active military service. The only evidence indicating an association between the current diabetes and his active service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of diabetes is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of diabetes. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current diabetes is etiologically related to his active service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his respiratory disabilities. On these facts, however, an examination is not required. In this case, the claim does not meet the requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no diabetes in service, and that the symptoms of diabetes were not present for many years thereafter, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that an additional VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for diabetes has been met. 38 C.F.R. § 3.159 (c) (4). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating General Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 6. Entitlement to an Increased Rating for Degenerative Disc Disease of the Lumbosacral Spine The Veteran seeks a higher rating for his service-connected degenerative disc disease of the lumbosacral spine. The Veteran’s service-connected low back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran’s increased rating claim was received on August 8, 2013. Therefore, the relevant rating period is from August 9, 2012, one year prior to receipt of the claim, through the present. See, 38 C.F.R. § 3.400 (o) (2). Diagnostic Code 5242 directs that degenerative arthritis of the spine be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Initially, the Board finds that the evidence of record does not reflect that the Veteran had favorable or unfavorable ankylosis of the thoracolumbar spine at any point during the relevant rating period. The medical treatment records do not show a finding or diagnosis of ankylosis of the thoracolumbar spine. The June 2014 VA examiner indicated that the Veteran does not have ankylosis of the thoracolumbar spine. The Veteran has not contended that he has ankylosis of the thoracolumbar spine. Thus, the Board concludes that the evidence of record does not show that the criteria for entitlement to a higher disability rating under Diagnostic Code 5242 based on ankylosis of the thoracolumbar spine were met at any time during the relevant rating period. In regard to the other rating criteria under Diagnostic Code 5242, the Board has carefully reviewed the medical treatment evidence of record. The records show that the Veteran has reported back pain. However, aside from the June 2014 VA examination discussed below, they do not contain any range-of-motion measurements for the lumbar spine. As such, aside from the June 2014 VA examination discussed below, the medical treatment evidence of record does not provide information relevant to rating the Veteran’s service-connected lumbosacral spine disability based on limited motion. The Veteran was provided a VA examination in June 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported pain in his low back with extended standing or walking. He did not report flare-ups. Upon examination, range-of-motion testing revealed forward flexion to 70 degrees with objective evidence of painful motion at 70 degrees; extension to 25 degrees with objective evidence of painful motion at 25 degrees; bilateral lateral flexion to 25 degrees with objective evidence of painful motion at 25 degrees; and bilateral lateral rotation to 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater. The Veteran was able to perform repetitive use testing without additional functional loss. There was no intervertebral disc syndrome and incapacitating episodes. Accordingly, the record does not show that the Veteran had forward flexion of the thoracolumbar spine 30 degrees or less, such that a rating in excess of 20 percent was warranted during the entire period on appeal under Diagnostic Code 5242. Specifically, at the June 2014 VA examination, the Veteran had forward flexion to 70 degrees with objective evidence of pain at 70 degrees. Therefore, the Board concludes that the criteria for entitlement to a higher disability rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine are not met. The Board has considered whether the Veteran was entitled to a higher disability rating under the criteria set forth in DeLuca. At the June 2014 VA examination, the Veteran did not report flare-ups in his symptoms. Additionally, repetitive use testing at the June 2014 VA examination did not reveal additional functional loss. The medical treatment evidence of record shows that the Veteran has reported pain, but it does not establish that his symptoms manifested during flare-ups or on repetitive use to a degree that more nearly approximates the criteria for a higher disability rating under Diagnostic Code 5242. See DeLuca, 8 Vet. App. 202. The Board finds that the Veteran’s complaints of pain and other symptoms did not impair his functioning to the degree required to more closely approximate the criteria for a higher rating under the relevant diagnostic codes. See Mitchell, 25 Vet. App. 32. The Board therefore finds that the criteria for a rating in excess of 20 percent for the Veteran’s service-connected degenerative disc disease of the lumbosacral spine have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran’s low back disability pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to Service Connection for Arthritis The Veteran contends that he has arthritis that is directly related to his active service. In the June 2016 Statement of Case, the RO noted that the Veteran was diagnosed with arthritis of the right foot by x-ray in November 2015. However, the most recent VA treatment records are from May 2015. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. 2. Entitlement to a TDIU As noted above, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for a higher disability rating. See Rice, 22 Vet. App. 447. As the RO has not yet considered whether the Veteran is entitled to a TDIU, the issue must be remanded to the RO for appropriate development and initial adjudication. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from May 2015. 2. Send the Veteran a notification letter with respect to his claim for entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 3. Complete any necessary development in view of the Veteran’s response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. 4. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for arthritis and entitlement to a TDIU may be granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel