Citation Nr: 1807542 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased disability rating for a major depressive disorder, currently evaluated at 50 percent prior to January 28, 2016, and 70 percent from January 28, 2016 to present. 2. Entitlement to an earlier effective date for the 70 percent evaluation for a major depressive disorder. 3. Entitlement to an increased rating for a low back disability, currently evaluated at 20 percent disabling. 4. Entitlement to an increased rating for left foot disability, currently evaluated at 10 percent disabling. 5. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the United States Navy from January 1977 to January 1981. The Veteran also served in the Navy Reserves. This matter arrives before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. (Hereinafter, the agency of original jurisdiction (AOJ).) The Veteran testified during a June 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the Veteran's testimony is found in the VACOLS database. The remaining documents of the Veteran's claims file are found on the Veterans Benefit Management System (VBMS) and Legacy Content Manager (LCM) databases. The Board observes that the Veteran testified that his service-connected disabilities impair his ability to gain and/or maintain employment. See June 2017 Hearing Transcript (VACOLS). The Board notes that if a claimant, or the record, reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). Here, the Veteran submitted an Application for Increased Compensation Based on Unemployability in June 2012. See VA Form 21-840. To date, the AOJ has not rendered a decision on the Veteran's TDIU application; as such, Rice is not for application in the instant appeal. The AOJ has not had an opportunity to respond, and the issue is not ripe for Board adjudication at this time. The issue of entitlement to an increased rating for a low back disability, currently evaluated at 20 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to January 28, 2016, the Veteran's service-connected major depressive disorder was manifested by psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment, with deficiencies in most areas. 2. On and after January 28, 2016, the Veteran's service-connected major depressive disorder is manifested by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas, but not total occupational and social impairment. 3. January 28, 2016 was the earliest date were the Veteran's major depressive disorder manifested as psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas. 4. The left foot disability has resulted in moderate impairment, but has not resulted in moderately severe impairment. 5. The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea (OSA) is etiologically related to service, or was caused or aggravated by his service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. Prior to January 28, 2016, the criteria are not met for a disability rating higher than the current 50 percent rating for the Veteran's service-connected major depression disorder. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9434 (2017). 2. On and after January 28, 2016, the criteria are met for 70 percent disability rating, but no higher, for the Veteran's service-connected major depressive disorder. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, DC 9434 (2017). 3. The criteria for an effective date earlier than January 28, 2016, for the assignment of a 70 percent disability rating for a major depressive disorder, have not been met. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2014); 38 C.F.R. § 3.400 (2017). 4. The criteria for a rating in excess of 10 percent for the left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a, DC 5284 (2017). 5. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VCAA Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In regards to the Veteran's claim for entitlement to service connection for OSA, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain on his behalf, in correspondence dated January 2013. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims for entitlement to service connection. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the Veteran's claims for increased evaluations of his service-connected major depressive disorder, low back disability, and left foot disability, the Board notes that these claims are considered a "downstream" element of the AOJ's grant of service connection. For such downstream issues, notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. The VA's duty to assist includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. Similarly, the Board finds that VA has complied with the VCAA's duty to assist by providing the Veteran with updated VA examinations and medical opinions. The Board finds that these updated VA examinations and medical opinions are adequate to decide the claims on appeal as they addressed the Veteran's reported symptoms, frequency, and severity of the claimed disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, the Board finds these VA examinations and medical opinions are thorough, supported by a clear rationale, based upon a review of the claims folder, and supported by the clinical evidence of record. Additionally, the VA examiners considered the Veteran's lay assertions in reaching their conclusions. Aside from the need for an adequate examination of the left foot disorder, which is discussed below, the Board finds that a remand is not necessary to obtain additional medical opinions. Also of record, and considered in connection with the claims on appeal, are the various statements provided by the Veteran, the Veteran's representative, and hearing testimony. With respect to the hearing, the Veteran was afforded the opportunity to appear and testify before the undersigned VLJ at a June 2017 videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2017 hearing, the VLJ specifically noted the issues on appeal. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. With respect to the Veteran's entitlement claims being denied in the present decision, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). With the exception of the left foot disability, the Board finds that all necessary development has been accomplished; therefore, appellate review and decision may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Applicable Legislation, Regulations and Jurisprudence Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. §5107 (b). III. Service Connection in General Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For any disability which is proximately due to, or results from, another disease or injury for which service-connected has been granted, it shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran's claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. IV. Disability Rating Principles Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one DC is duplicative of or overlapping with the symptomatology justifying an evaluation under another DC. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). V. Increased Rating Analyses for Major Depressive Disorder In his April 2014 VA Form 9, the Veteran expressed discontent with AOJ language used for the 50percent rating he received for his major depressive disorder in March 2013. During the course of the appeal, the evaluation assigned was increased to 70 percent effective from January 28, 2016. He contends that his major depressive disorder is more severely than currently evaluated warranting a higher disability rating. Mental health disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the AOJ certified the Veteran's appeal to the Board in March 2017, which is after August 4, 2014. Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. Regardless, the Board is cognizant that DSM-IV diagnoses and GAF scores are still evidence that should be considered in assessing claims. The regulation change does not remove the previous diagnoses and GAF scores from the record; they are still evidence that has to be considered and weighed. See VBA Live Manual, M21-1, Part III.iv.3.A.6.e (DSM-5 and Mental Disorders Specialty Examinations); Part III.iv.4.H.1.k. (Removal of the GAF Score From the DSM and Assigning Evaluations Based on Prior GAF Score). The Veteran's service-connected major depressive disorder is rated under 38 C.F.R. § 4.71a, DC 9434. As provided by the General Rating Formula, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is in order when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan, 16 Vet. App. at 442. The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. Id. The 70 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies "in most areas." Id. Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level. Vazquez-Claudio, 713 F.3d at 117. In evaluating the evidence, the Board has also noted various GAF scores contained in the DSM-IV, which clinicians have assigned. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. Stated another way, GAF scores may be considered in assigning the appropriate disability rating, but they are not the dispositive element in rating the level of impairment. See Caluza, 7 Vet. App. at 506. Higher GAF scores denote increased overall functioning of the individual. For instance, a score of 31 to 40 represents "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." DSM-IV at 46-47. A score of 41 to 50 illustrates "(s)erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51 to 60 represents "(m)oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. Finally, a score of 61-70 illustrates "(s)ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. The Veteran has appealed the March 2013 AOJ rating decision, which increased the disability rating for his major depressive disorder to 50 percent. Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The effective date for an increased rating claim, however, is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); see also DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," the Board looks to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. See VAOPGCPREC 12-98. In addition, after careful consideration of the temporal evidence, any reasonable doubt remaining on any material question of law or fact is to be resolved in favor of the claimant. 38 C.F.R. § 4.3; Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). As will be discussed below, in light of Swain, the Board finds that the 50 percent rating is warranted prior to January 28, 2016, and the 70 percent rating is warranted after the same date. The AOJ has already staged the ratings for the Veteran's service-connected major depressive disorder, prior to and after January 28, 2016. The Veteran seeks a higher rating for both time periods. A. Greater than 50 Percent prior to January 28, 2016 In May 2010, the Veteran underwent a VA examination to address the nature and extent of his major depressive disorder. The examination report reveals that the Veteran could not sleep without medication, and he had persistent nightmares. The Veteran reported that he had friends with whom he liked to go to cabins/cottage and boat or fish with. He did not like to go to restaurants due to the cost and perceived health risks. He watched movies only at home and went to family gatherings with his side of the family only as he was in conflict with his wife's family due to their attitude toward him. He did not have a history of suicide attempts or violence or assaultiveness. The examiner noted that, while the Veteran was reserved and may seem emotionally aloof at times, his social functioning appeared adequate. He had no problematic effect associated with alcohol use and had no other substance use. Current treatment included individual psychotherapy that had a good effectiveness. His speech was unremarkable, clear, and coherent although he did overelaborate in response to questions putting forth answers that seemed to accentuate problems, but may not be directly response to what was asked. He was cooperative, friendly, relaxed, and attentive. His affect was appropriate and his mood, while generally euthymic, was noted to be good. He had intact attention and was oriented to person, time, and place. His thought process was noted to be over elaborative while his thought content was noted to be unremarkable. He had no delusions or hallucinations. He understood the outcome of his behavior and had average intelligence. He could not sleep with medication and still had nightmares of his motor vehicle accidents. The examiner noted that the Veteran had no inappropriate behavior, obsessive/ritualistic behavior or panic attacks. He had fair impulse control and was able to maintain minimum personal hygiene. There was no problem with his activities of daily living. His memory was normal. The Veteran had been retired for a year. The VA May 2010 examiner did not identify occupational and social impairment with deficiencies in most areas. Instead, the VA provider identified, "reduced reliability and productivity . . .." The VA provider offered the following symptom(s) to support the identified disability level, "can be intolerant of others and (apparently) irritable leading to reduced reliability and inconsistent work performance." The VA provider assigned a GAF score of 65. In August 2012, which is early in the claim period, the Veteran underwent a VA examination to address the nature and extent of his major depressive disorder. The examiner noted that there had been little change since his prior May 2010 examination. The Veteran continued to live with his wife. The Veteran had never made a suicide attempt and had no history of substance abuse. Symptoms attributed to his mental disability included depressed mood; anxiety chronic sleep impairment mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; low self-esteem; periods of lethargy and psychomotor retardation; emotional constrictions periods of social avoidance; and excessive worry brooding and rumination over daily stressors. The Veteran did not have suspiciousness; panic attacks; near continuous panic or depression affective the ability to function independently, appropriately and effectively; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; intermittently illogical, obscure, or irrelevant speech; difficulty in understanding complex commands; impaired judgment or abstract thinking; gross impairment in thought processes or communication; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control such as irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; or disorientation to time or place. A GAF score of 57 was assigned. As noted above, the Veteran has expressed written and testimonial discontent with the 50 percent rating he received for his major depressive disorder. The Board is mindful that the Veteran's lay statements alone may constitute competent evidence of worsening. See Vazquez-Flores v. Shinseki, 24 Vet. App. at 102. The Board is equally mindful of the Veteran's unique ability to describe the severity, frequency, and duration of his service-connected major depressive disorder. See Falzone, 8 Vet. App. at 398. Here, however, the Veteran has not offered evidence regarding the severity of his major depressive disorders that balance with (or outweigh) the probative medical opinions provided during the relevant appeal period. See VAOPGCPREC 12-98 (In determining when an increase is "factually ascertainable," look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place). Again, the August 2012 VA provider noted, "occupational and social impairment with reduced reliability and productivity." The Veteran's claims file is devoid of evidence to equal (or outweigh) this competent and probative medical opinion. The Board finds that totality of the evidence, for the period prior to January 28, 2016, supports a disability rating of 50 percent for the Veteran's major depressive disorder. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an increased disability rating for his major depressive disorder, prior to January 28, 2016, is denied. See 38 U.S.C.A § 5107. B. Above 70 percent from January 28, 2016 to Present On January 28, 2016, the Veteran underwent the latest VA examination for his major depressive disorder. The Veteran remained with his wife and noted that she was a good person, but not a good companion. He had a poor relationship with his father in law who once told the Veteran he was a lousy father although thing had gotten better between them. He last worked on a farm in 2009, but was fired as the farmer that hired him wanted him to do things he was not physically able to do. Symptoms attributed to his depressive disorder included depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting. The Veteran presented as casually groomed and his psychomotor activity was within normal limits. His Speech was spontaneous, clear and coherent. The examiner observed that the Veteran was cooperative, friendly and relaxed. Mood was depressed with congruent affect. Likewise, he was fully oriented and alert. His thought processes and content were somewhat tangential. The Veteran did not have delusions and hallucinations, and his judgement, insight and impulse control were intact. Suicidal and homicidal ideations were denied by the Veteran. For this examination, the VA provider reviewed the Veteran's entire claims file. The VA provider identified the following symptoms, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Among the many behavioral observations recorded, the VA provider identified the Veteran as casually groomed, cooperative, friendly and relaxed. The VA provider described tangential thought processes and content, but noted that insight and impulse control were intact. Ultimately, the VA provider opined that the Veteran exhibited "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood." As noted above, the Veteran has expressed written and testimonial discontent with the 70 percent rating he received for his major depressive disorder. The Board is mindful that the Veteran's lay statements alone may constitute competent evidence of worsening. See Vazquez-Flores v. Shinseki, 24 Vet. App. at 102. The Board is equally mindful of the Veteran's unique ability to describe the severity, frequency, and duration of his service-connected major depressive disorder. See Falzone, 8 Vet. App. at 398. Here, however, the Veteran has not offered evidence regarding the severity of his major depressive disorders that balance with (or outweigh) the probative medical opinion provided during the relevant appeal period. See VAOPGCPREC 12-98 (In determining when an increase is "factually ascertainable," look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place). Importantly, the January 2016 VA provider identified, "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood." The Veteran's claims file is devoid of evidence to equal (or outweigh) this competent and probative medical opinion. The Board finds that totality of the evidence, for the period after January 28, 2016, supports a disability rating of 70 percent for the Veteran's major depressive disorder. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an increased disability rating for his major depressive disorder, after January 28, 2016, is denied. See 38 U.S.C.A § 5107. VI. Earlier Effective Date Analysis for Major Depressive Disorder In his March 2016 VA Form 9, the Veteran identified his disagreement with the effective date assigned by the AOJ for the Major Depressive Disorder. Therein, the Veteran states that, "(t)he Rating decision only grants my increase back to 1/28/2016. I am requesting an earlier effective date back to the original claim date of 2/20/12." In April 2016, VA received a notice of disagreement from the Veteran's representative. Therein, the representative noted that, "the Veteran was granted a 70% rating for Major Depressive Order . . .. The effective date on 1/18/16, not the original date of the claim which was 2/9/13 nor was it the date of Appeal 4/10/14. Please reevaluate the Veteran's effective date to be 2/9/13 and process the proper retro amount." In his June 2016 VA Form 9, the Veteran clarifies his contention: "On 2/19/16, I received a rating granting my increase to 70% and setting the effective date 1/28/16 instead of the true effective date of 2/28/12. The Date of the Original Claim." The Veteran summed his position with, "why should I be penalized for the VA's not setting an earlier Comp and Pen Exam during that period?" During his January 2017 testimony before the undersigned VLJ, the Veteran confirmed a desire for an earlier effective date for the 70 percent disability rating the AOJ assigned for his major depressive disorder. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Regulations provide that 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 the later. 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under applicable laws and regulations, if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). As the Board found in the previous, increased-rating analysis, the weight of probative, competent evidence identifies January 28, 2016 as the earliest date when a 70 percent disability rating was warranted for the Veteran's major depressive disorder. Prior to January 28, 2016, the Veteran's claims file is devoid of competent and/or probative medical evidence that would support occupational and social impairment, with deficiencies in most areas. In summary, the Board concludes that the preponderance of the evidence weighs against an earlier effective date for the Veteran's 70 percent disability rating for a major depressive disorder. Under these circumstances, the benefit-of-doubt rule is not for application, and the claim on appeal must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). VII. Increased Rating Analysis for Left Foot Disability In his May 2013 Statement in Support of Claim (SSC), the Veteran disagrees with the 10 percent disability rating the AOJ assigned for his left foot disability. The Veteran's left foot disability claim falls under 38 C.F.R. § 4.71a, DC 5284. When a condition is specifically listed in the rating schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). In other words, DC 5284 does not apply to the eight foot conditions specifically listed in the rating schedule under DCs 5276-5283. Id. at 337. Therefore, the Board will consider whether the Veteran is entitled to an increased rating under DC 5284 alone for his left foot disability. Under DC 5284 (other foot injuries), a 10 percent rating is warranted when the disability is moderate. A 20 percent rating is warranted when the disability is moderately severe. A 30 percent rating is warranted when the disability is severe. DC 5284 is a more general DC under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, depending on the nature of the foot injury, DC 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. See VAOPGCPREC 9-98. Here, there is no evidence that the Veteran has limitation of motion of left foot. In August 2012, the Veteran underwent a VA examination to determine the current nature and severity of his left foot disability. During the examination, the Veteran reported pain on weight bearing. He also reported pain that last 5-10 minutes daily, which may occur with or without activity. The Veteran described the sensation "very painful," and he indicated that it occurred three times per day. The VA provider noted that, "the patient has no evidence of pain on distracted exam and his gait is normal." The VA provider did not identify swelling or deformity of the left foot. Pertinent to this DC 5284 analysis, the VA provider concluded that the Veteran displayed moderate symptoms for his left foot disability. In his May 2013 statement in support of claim, the Veteran suggests that the VA provider did not accurately portray his symptoms in the August 2012 examination report. Therein, Veteran posits that, "my left foot is in constant pain (all day aching pain) with short spikes of extreme pain which occur 3 to 4 times a day." Also, the Veteran disagrees with the examination report because the VA provider was not an orthopedic specialist. On March 3, 2015, the Veteran was treated by a podiatrist. This follow-up treatment was for sinus tarsi syndrome of the left foot. During the March 2015 treatment, the Veteran was given a cortisone injection for pain. The podiatrist indicated that the Veteran was wearing supportive shoe gear, but she felt he would benefit from custom orthotics. The provider noted pain with palpation of the sinus tarsi of left foot. There was no pain with lateral compression of the Veteran's calcaneus. Also, there was minimal pain with ankle ROM testing. Despite the podiatrist's described risks and benefits of a cortisone injection, the Veteran provided informed consent so that he would be comfortable during pro-longed travel. When the Veteran returned from his trip in April 2015, the podiatrist was informed that the left foot was comfortable throughout the international travel period. In a June 2015 Statement in Support of Claim, the Veteran describes his current level of foot disability. Therein, the Veteran indicates that he had received medication injections to relieve pain in his left foot. He also indicates that he currently wars orthopedic inserts in left and right shoes. In January 2016, the Veteran underwent a VA examination to determine the nature and severity of his left foot disability. During the examination, the Veteran reported, "pain as constant stabbing stiffness it feels like 'a weight is upon it.'" The Veteran reported 8/10 pain with inversion, stair climbing, stair descending, and standing longer than 30 minutes. The Veteran did not indicate that he suffered from flare-ups that impact the function of his left foot disability. The VA provider noted the Veteran had received three cortisone injections from his podiatrist, which provided transient symptomatic improvement. The VA provider concluded that the Veteran's displayed symptoms equated with a mild level of severity. In his March 2016 VA Form 9, the Veteran shared his discontent with the January 2016 VA examination of his left foot disability. Therein, the Veteran shares that he informed the VA provider about constant and intense pain. Additionally, the Veteran informed the VA provider that his symptoms had required 3 cortisone shots (in 18 months) and special inserts for his shoes. The Form 9 also describes an inability to bend over and replace a sock during the examination. After thorough review of the evidence of record pertinent to this claim, the Board finds that the overall disability picture does not more closely approximate a 20 percent under DC 5284. 38 C.F.R. § 4.7. While the Veteran has reported pain in his foot, the 2016 examination report notes that his difficulties occurred with prolonged standing greater than 30 minutes. He denied flare up attributed to his foot disability. Further, the examiner described the severity of the left foot disability to mild manifested by pain in his left lateral midfoot with exacerbations during weightbearing. However, the disability did not chronically compromise weight bearing. With respect to the Veteran's pain, the examiner noted that the pain did not contribute to functional loss and the examiner suspected that the Veteran was exaggerating his current symptoms based on a review of X-rays of the foot. The Veteran did not use any assistive devices for his foot. The Veteran left foot was not noted to have impacted his ability to perform any type of occupational task such as standing, walking, lifting, or sitting. Based on the foregoing, the Board concludes that the weight of the evidence is against a finding that the Veteran's left foot disability results in symptoms consistent with a severe injury of the foot as contemplated by a higher evaluation. Accordingly, as, the preponderance of the evidence is against this increased disability rating claim, and it must be denied. 38 C.F.R. § 4.3. The Board has considered staged ratings. However, in this case, there is no basis to stage the rating for the Veteran's left foot disorder. The evidence reflects no distinct period where either disability exhibited symptoms that would warrant a different rating other than the one currently assigned. VIII. Entitlement to an Extraschedular Evaluation The Board has additionally considered whether the Veteran's major depressive disorder and/or left foot disability warrant the assignment of an extraschedular disability evaluation. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2016); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). If the AOJ or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. See also 38 C.F.R. § 3.321(b)(1). Neither the AOJ nor the Board is permitted to assign an extraschedular rating in the first instance; rather, the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). Having reviewed this case thoroughly, and with due application of the substantive standards for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that no higher rating is warranted on an extraschedular basis. The Board does not find that the longitudinal evidence of record shows such an exceptional disability picture that the available schedular evaluations for the service-connected major depressive disorder and/or left foot disability are inadequate or impractical for evaluating a disability of the severity experienced by the Veteran. Rather, a comparison between the level of severity and symptomatology of the Veteran's assigned evaluations with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The symptoms of the Veteran's major depressive disorder, including difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships, have been fully considered in the rating criteria. 38 C.F.R. § 4.130, DC 9434. Similarly, the symptoms of the Veteran's left foot disability, including pain, fatigue, tenderness, and other factors of functional loss have also been fully considered in the rating criteria, to include 38 C.F.R. §§ 4.40, 4.45, 4.59. Indeed, the Board notes that, for all musculoskeletal disabilities, including the Veteran's left foot, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, deformity, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; deformity; instability of station; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for mental disorders and musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case. Furthermore, the Board finds that any allegation or report of missed time from work due to the Veteran's major depressive disorder and/or left foot disability is fully addressed by the assigned schedular criteria. VA regulations specify that the assignment of a schedular disability evaluation inherently contemplates the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As such, factors such as requiring periodic medical attention are clearly contemplated in the rating schedule and provided for in the assigned disability evaluations. Therefore, the Board finds that there are no symptoms associated with the Veteran's service-connected major depressive disorder and left foot disability that are not addressed in the Rating Schedule, and by the assigned ratings discussed above. Because the threshold step of Thun is not met here, and the Veteran's service-connected major depressive disorder and left foot disability are contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as frequent periods of hospitalization. 22 Vet. App. at 116; see also 38 C.F.R. § 3.321(b)(1). Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected major depressive disorder and left foot disability, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Thun, 22 Vet App. at 115; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). IX. Sleep Apnea Analysis In his June 2012 VA 21-4138, the Veteran opened his claim for entitlement to service connection for sleep apnea. At the same time, the Veteran's wife provided her written statement in support of the Veteran's entitlement claim. Therein, his wife posited that, "(the Veteran) has been having trouble sleeping more than five hours each night. If he falls asleep during the day time . . . I notice he stops breathing." As identified earlier, the first, requisite element of a service-connection claim is the presence of a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. §3.303 (a). During a February 2013 VA examination of the Veteran, the provider identified a diagnosis for OSA. Consequently, a current diagnosis is present, and the Board will proceed to the next, requisite element of a direct service-connection claim. Generally, to substantiate a service-connection claim on a direct basis there must be an in-service incurrence of that disability. See Id. The Board has thoroughly reviewed the Veteran's claims file and found no mention of OSA within his STRs. In fact, the Veteran's claims file does not contain a diagnosis for sleep apnea until 2010, which is many years after Navy service. Ultimately, the Board is unable to grant service connection for sleep apnea on a direct basis without an in-service incurrence. The Veteran also seeks secondary service connection for his sleep apnea. In his May 2013 SSC, the Veteran states that, "the examiner did not consider the totality of my SC disabilities which affects my sleep apnea such as depression, pain, comfortability . . .." When questioned by the undersigned VLJ, the Veteran testified that medical providers had suggested obesity as the cause of his sleep apnea. See January 2017 Hearing Transcript. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran has maintained an OSA diagnosis since May 2010. See February 2013 VA Examination Report. The Veteran has been service connected for a Depressive Disorder since April 2010. Consequently, the first and second elements of a secondary service-connection claim are satisfied. Id. In February 2013, the Veteran underwent a VA examination to determine the nature and etiology of his sleep apnea. The Board finds the resultant opinion is entitled to high probative weight, as the provider's opinion was based on a medical examination, consideration of medical literature, and review of the Veteran's claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA provider opined that, "(t)he claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition" Noting that "(c)urrent medical literature does not support that depression causes sleep apnea. There is no relation between depression and obstructive sleep apnea." Because no causal relationship was plausible, the February 2013 VA provider did not discuss or identify a baseline for the Veteran's sleep apnea or any degree of aggravation caused. As noted earlier, for a secondary service-connection claim, it is the Veteran's burden to demonstrate some degree of aggravation from a service-connected disability on a non-connected medical condition. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310). The preponderance of the evidence is against the Veteran's claim for entitlement to service connection for sleep apnea. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. This doctrine of reasonable doubt, however, is inapplicable in this case because the preponderance of the evidence weights against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). The Board, therefore, denies entitlement to service connection, include direct and secondary, for sleep apnea. ORDER Entitlement to a disability rating in excess of 50 percent for a major depressive disorder, prior to January 28, 2016, is denied. Entitlement to a disability rating in excess of 70 percent for a major depressive disorder, after January 28, 2016, is denied. Entitlement to an earlier effective date, for the 70 percent rating for a major depressive disorder, is denied. Entitlement to a disability rating in excess of 10 percent for a left foot disability is denied. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected psychiatric disorder, is denied. REMAND In January 2016, the Veteran underwent a VA examination to evaluate the severity level of his service-connected low back disability. In the examination report, the VA provider noted that ROM testing was not done; the Veteran was unwilling to perform ROM testing due to anticipated pain. The Veteran reported constant, sharp, aching, and stabbing-like discomfort in his lower lumber spine. The Veteran did not report interference with the bowel or sexual functions. The Veteran did not report flare-ups. The VA provider identified normal, 5/5 muscle strength for all lower extremities. The Veteran reported functional loss or functional impairment of the thoracolumbar spine, regardless of repetition. The VA provider did not identify ankylosis of the spine. The VA provider could not assess ROM or functional loss because, "Vet states he has pain with any attempted range of motion of the spine." The VA provider remarked, "(e)xtremely difficult to gauge the severity of the Veterans true symptoms, he essentially refuses to move for me. . .. My sense is the Veteran is exaggerating the severity of his symptoms for perceived financial gain." Range of motion test results are generally required for rating musculoskeletal disabilities affecting the joints. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Whether any examiner can obtain the necessary test results obviously depends, to some degree, on the Veteran's cooperation. If the examiner simply cannot obtain the needed results as a consequence of the claimant's refusal to cooperate, then the duty to assist does not necessarily require VA to make further efforts to obtain the evidence needed to establish the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") It is not totally clear whether, in this case, the Veteran actually refused to cooperate with the low back ROM tests. Under the circumstances of this case, only after the Veteran had been so advised could the Board clearly attribute the inadequate examination results to an unreasonable refusal to cooperate. For these reasons, the Board must remand the low back increased rating claim for a new examination. On remand, the examiner should attempt to obtain separate range of motion test results for "both active and passive motion and in weight bearing and nonweight-bearing . . .." Correia, 28 Vet. App. at 170. If the examiner cannot obtain the necessary information, the post-remand examination report should include a clear explanation, including a summary of how the Veteran responds after the examiner advises him concerning any suspicions that any test results are invalid. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. All appropriate tests and studies should be performed. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's low back, presenting the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of the requested findings cannot be obtained, please provide an explanation for while such could not be obtained. For the low back disability, the examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups) and, to the extent possible, provide an assessment of the functional impairment after repeated use over time. If feasible, the examiner should assess the additional functional impairment on repeated use over time or during flare-ups in terms of the degree of additional range of motion loss. The examiner should ask the Veteran to describe the frequency and duration of flare-ups and record the Veteran's response in his or her report. If the examiner determines that he or she cannot determine whether there would be additional limits on functional ability on repeated use or during flare-ups, or if he or she indicates that the extent of those additional limitations on functional ability cannot be quantified in terms of additional range of motion loss, the examiner should provide a thorough explanation for his or her inability to provide the requested opinion. That explanation should indicate whether the examiner obtained all tests and records that might reasonably illuminate the medical analysis. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs