Citation Nr: 21001985 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-17 015A DATE: January 12, 2021 ORDER The claim for entitlement to an evaluation for a left rhomboid strain in excess of 0 percent prior to October 25, 2017, and 20 percent from October 25, 2017 is dismissed. The claim for entitlement to an earlier effective date for the grant of service connection for a left rhomboid strain is dismissed. Entitlement to an increased evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019 is denied. Entitlement to an increased evaluation in excess of 30 percent for cervical spine disability from July 13, 2019 is denied. REMANDED Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. At an August 2019 hearing, the Veteran notified VA, prior to the promulgation of a decision by the Board, that he desired to withdraw his claims for entitlement to an evaluation in excess of 20 percent for a left rhomboid strain and entitlement to an earlier effective date for a left rhomboid strain. 2. Prior to July 13, 2019 the Veteran’s cervical spine disability did not cause him to have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 3. From July 13, 2019, the Veteran’s cervical spine disability did not cause him to have unfavorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to a higher disability evaluation for his service-connected left rhomboid strain. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to an earlier effective date for the grant of service connection for a left rhomboid strain. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for entitlement to an increased evaluation in excess of 10 percent for a cervical spine disability from June 11, 2012 to July 13, 2019 have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5010-5242. 4. The criteria for entitlement to an increased evaluation in excess of 30 percent for a cervical spine disability from July 13, 2019 have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1986 to January 1990. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated August 2013, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO continued the evaluation of degenerative joint disease at C5-6 claimed as neck condition, which was rated at 10 percent disabling. The RO also denied service connection for migraine headaches. A Board hearing was held before the undersigned Judge in August 2019. The hearing transcript has been associated with the Veteran’s file. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative either in a signed statement or on record during a Board hearing. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his claims for entitlement to a higher disability evaluation for a left rhomboid strain and entitlement to an earlier effective date for a left rhomboid strain on record during his August 2019 hearing. See August 2019 Hearing Transcript. Therefore, the Veteran has withdrawn the issues of entitlement to an evaluation in excess of 20 percent for a left rhomboid strain and entitlement to an earlier effective date for a left rhomboid strain. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed. Increased Ratings A disability rating is determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 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). 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). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). 1. Entitlement to an increased evaluation in excess of 10 percent for a cervical spine disability prior to July 13, 2019 The Veteran’s degenerative joint cervical spine disability is rated as 10 percent disabling under Diagnostic Codes 5010-5242 from June 11, 2012 to July 13, 2019. The period on appeal is from June 11, 2012, the date of the Veteran’s claim, to July 13, 2019, the effective date of the Veteran’s 30 percent disability rating. The Veteran seeks a higher rating. The Veteran asserted that throughout the pendency of his appeal, his private records and statements note that he had flare-ups of the cervical spine. See Hearing Transcript dated August 2019. He had periods where he would have to go for treatment and therapy because he had decreased range of motion, increased pain, and this had been happening for a substantial period of time. He contended that an increase was warranted because the VA examinations in May and July 2019 showed that with repetitive use and flare-ups, he had a decreased range of motion that affected him during occupational functioning and in all areas of his life. He reported experiencing flare-ups at least four to five days a week, which equated to about 20 days out of the month. When he experienced a flare-up, he was incapacitated, causing him to stop and quit whatever he was doing. He used a TENS unit in the past, which worked on and off. He used an electric heating pad and a microwave heating pad. He provided that part of the reason why he worked from home at least two days a week was to allow him to be able to utilize his heating pad without trying to do it at work. He had neck surgery in July 2019. The surgery was a microforaminotomy, which caused his flare-ups to not be as radiant as they were before. Intervertebral disc syndrome (IVDS), (preoperatively or postoperatively) can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, degenerative arthritis of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating contemplates forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating contemplates forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The evidence of record is supportive of a 10 percent rating, but no higher, for the Veteran’s cervical spine disability from June 11, 2012 to July 13, 2019. 38 C.F.R. § 4.7. This 10 percent rating is effective for a cervical spine disability under Diagnostic Codes 5010-5242 under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board concludes that the Veteran is not entitled to an increased disability rating in excess of 10 percent from June 11, 2012 to July 13, 2019 for his service-connected cervical spine disability. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. With regards to orthopedic manifestations of the cervical spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire cervical spine warranting a higher 40 percent evaluation, or forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine warranting a higher 30 percent evaluation, or forward flexion of the cervical spine greater than 15 degrees but no greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 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 warranting a higher 20 percent evaluation. 38 C.F.R. § 4.71a. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)). There is no diagnosis of ankylosis of the cervical spine in the evidence of record and range of motion findings, although limited at times, are not equivalent to favorable or unfavorable ankylosis. The October 2014, March 2019, and May 2019 spine examinations contain no findings of ankylosis. In fact, all three spine examiners specifically noted that there was no cervical spine ankylosis. In addition, VA treatment records and private treatment records document neck pain, but fail to reveal any evidence of cervical spine ankylosis. Nonetheless, it is apparent from the evidence of record that the Veteran’s cervical spine is not fixated or immobile with fibrous or bony union. Furthermore, the Veteran’s lay statements do not indicate that there has been ankylosis or lack of range of motion that more nearly approximates ankylosis. Accordingly, the criteria for an increased rating based on ankylosis of the spine is not warranted. In addition, the Veteran has not been shown to have forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. That is, even with consideration of pain, functional loss, repetition x 3, and flare-ups, limitation of forward flexion has been recorded as 45 degrees for his March 2019 VA spine examination, and 30 degrees for his May 2019 VA spine examination. None of these range of motion findings supports a higher 20 percent rating for the cervical spine. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the cervical spine was not additionally limited to the point of demonstrating forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. VA and private treatment records document cervical spine pain and tenderness but fail to reveal any evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Therefore, an increased evaluation above 10 percent for the Veteran’s service-connected cervical spine disability from June 11, 2012 to July 13, 2019 is not warranted on the basis of functional loss due to pain or weakness or weakened movement or excess fatigability or incoordination in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. A VA examination dated in May 2019 revealed factors of functional loss such as pain and lack of endurance. He does not use any assistive devices. The Board notes it has also considered the competent and credible lay evidence from the Veteran when considering functional loss. Nevertheless, the effect of the pain and other factors listed in the Veteran’s cervical spine is contemplated in the 10 percent rating assigned. Indeed, as previously discussed, the evidence does not show that pain or other factors cause functional loss more closely approximating forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Once again, pain in itself does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With regard to incapacitating episodes due to IVDS, the evidence of record does not establish the Veteran to have had incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during any 12-month period, which is required for a higher 40 percent rating. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The October 2014, March 2019, and May 2019 spine examiners found no incapacitating episodes due to IVDS. There are no VA or private treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least 4 weeks during a year. Thus, a rating above 10 percent is not warranted for the Veteran’s cervical spine under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to an increased rating in excess of 10 percent for a cervical spine disability from June 11, 2012 to July 13, 2019. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an increased evaluation in excess of 30 percent for a cervical spine disability from July 13, 2019 The Veteran’s cervical spine disability is currently rated as 30 percent disabling from July 13, 2019 under Diagnostic Code 5242. The Veteran seeks a higher rating. The Veteran asserted that throughout the pendency of his appeal, his private records and statements note that he had flare-ups of the cervical spine. See Hearing Transcript dated August 2019. He had periods where he would have to go for treatment and therapy because he had decreased range of motion, increased pain, and this had been happening for a substantial period of time. He contended that an increase was warranted because the VA examinations in May and July 2019 showed that with repetitive use and flare-ups, he had a decreased range of motion that affected him during occupational functioning and in all areas of his life. He reported experiencing flare-ups at least four to five days a week, which equated to about 20 days out of the month. When he experienced a flare-up, he was incapacitated, causing him to stop and quit whatever he was doing. He used a TENS unit in the past, which worked on and off. He used an electric heating pad and a microwave heating pad. He provided that part of the reason why he worked from home at least two days a week was to allow him to be able to utilize his heating pad without trying to do it at work. He had neck surgery in July 2019. The surgery was a microforaminotomy, which caused his flare-ups to not be as radiant as they were before. Intervertebral disc syndrome (IVDS), (preoperatively or postoperatively) can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, degenerative arthritis of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating contemplates forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating contemplates forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). The evidence of record is supportive of a 30 percent rating, but no higher, for the Veteran’s cervical spine disability from July 13, 2019. 38 C.F.R. § 4.7. This 30 percent rating is effective for a cervical spine disability from July 13, 2019 under Diagnostic Code 5242 under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board concludes that the Veteran is not entitled to an increased disability rating in excess of 30 percent for his service-connected cervical spine disability from July 13, 2019. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. With regard to orthopedic manifestations of the cervical spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire cervical spine warranting a higher 40 percent evaluation. 38 C.F.R. § 4.71a. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)). There is no diagnosis of ankylosis of the cervical spine in the evidence of record and range of motion findings, although limited at times, are not equivalent to favorable or unfavorable ankylosis. The July 2019, January 2020, September 2020 VA spine examinations contain no findings of ankylosis. In fact, all three spine examiners specifically noted that there was no cervical spine ankylosis. In addition, VA treatment records and private treatment records document neck pain, but fail to reveal any evidence of cervical spine ankylosis. Furthermore, the Veteran’s lay statements do not indicate that there has been ankylosis or lack of range of motion that more nearly approximates ankylosis. Accordingly, the criteria for an increased rating based on ankylosis of the spine is not warranted. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the cervical spine was not additionally limited to the point of demonstrating unfavorable ankylosis of the entire cervical spine. VA and private treatment records document cervical pain and tenderness but fail to reveal any evidence of unfavorable ankylosis of the entire cervical spine. Therefore, an increased evaluation above 30 percent for the Veteran’s service-connected cervical spine disability from July 13, 2019 is not warranted on the basis of functional loss due to pain or weakness or weakened movement or excess fatigability or incoordination in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 30 percent rating, and no higher. VA examinations dated in July 2019, January 2020, and September 2020 reveal factors of functional loss such as pain. He does not use any assistive devices. The Board notes it has also considered the competent and credible lay evidence from the Veteran when considering functional loss. Nevertheless, the effect of the pain and other factors listed in the Veteran’s cervical spine are contemplated in the 30 percent rating assigned. Indeed, as previously discussed, the evidence does not show that pain or other factors cause functional loss more closely approximating unfavorable ankylosis of the entire cervical spine. Once again, pain in itself does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With regard to incapacitating episodes due to IVDS, the evidence of record does not establish the Veteran to have had incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during any 12-month period, which is required for a higher 40 percent rating. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The July 2019, January 2020, and September 2020 VA spine examiners found no incapacitating episodes due to IVDS. There are no VA or private treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least 4 weeks during a year. Thus, a rating above 30 percent from July 13, 2019 is not warranted for the Veteran’s cervical spine under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to an increased rating for a cervical spine disability from July 13, 2019. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for migraines is remanded. Although the Board regrets the additional delay, the Veteran’s remaining claim must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that additional supporting evidence is required in developing the Veteran’s claim. The Veteran reported that his headaches began in 1986 when his neck issue began. See Hearing Transcript dated August 2019. He started physical therapy at that time, and it was at that time that the migraines began to come. He tried to use the exercise technique that was provided after the physical therapy to deal with them. He started taking a bunch of asprin until it became an issue with his kidney. He contended that he had headaches pretty much continually since 1986. The Veteran underwent a VA examination in February 2003 for spine (cervical, thoracic, and lumbar) conditions. The VA examiner noted that the Veteran had more frequent bouts of neck pain, where there was pain in the left trapezius and into the occipital scalp, with headaches. These episodes were occurring two to three times monthly and he had to apply heat, massage, analgesic rubs, and take strong pain medication to alleviate symptoms. The Veteran was afforded another VA examination in March 2013 for his headaches (including migraine headaches). The VA examiner concluded that the Veteran’s headaches were less likely than not proximately due to or the result of the Veteran’s service-connected condition. There was a medical record from 1987 showing the Veteran had neck pain. It was less than likely that the Veteran’s migraine headaches were secondary to the cervical spine condition. Migraine headaches by definition are primary headaches, not caused by factors outside of the cranium. Furthermore, the Veteran’s headaches were determined to have not been aggravated due to his cervical spine condition as migraine headaches by definition are primary headaches, not caused by factors outside of the cranium. However, while the VA examiner provided an opinion for the Veteran’s contention that his migraines were caused or aggravated by his cervical spine condition, the examiner did not address the Veteran’s contention that his migraines were due to his service. Therefore, the Board finds that a remand is required in order to obtain a VA examination specifically addressing this contention. As the Veteran’s claim is being remanded, the Board requests that the AOJ contact the Veteran to ensure all available medical records have been obtained and associated with the claims file. The VA’s duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (The VA is charged with constructive, if not actual, knowledge of evidence generated by the VA). Therefore, the AOJ should obtain and associate with the claims file any outstanding VA medical records, assuming they are adequately identified by the Veteran after any necessary clarification. Accordingly, the matter is REMANDED for the following action: 1. The AOJ should contact the Veteran, and, with his assistance, identify any additional outstanding records of pertinent medical treatment for any migraines. In obtaining these records, the AOJ is instructed to follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If the AOJ’s attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA medical examination with an appropriate qualified physician. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a.) Please identify any migraines that are currently manifested. (b.) For any migraines identified is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was incurred during the Veteran’s active military service? (c.) For any migraines identified is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability is either (a) due to or (b) aggravated by the Veteran’s service-connected cervical spine disability. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.