Citation Nr: 21066197 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-21 164 DATE: October 28, 2021 ORDER Entitlement to an increased disability rating of 40 percent, but no higher, for degenerative disc disease of the lumbar spine with intervertebral disc syndrome (IVDS), for the period from November 23, 2015, to August 10, 2018, is granted. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with IVDS, for the period from August 10, 2018, onward, is denied. Entitlement to service connection for a right ankle disability is denied. The petition to reopen the claim of entitlement to service connection for a left ankle disability is denied. The petition to reopen the claim of entitlement to service connection for a left knee disability is denied. The petition to reopen the claim of entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. For the period beginning with a factually ascertainable onset of November 23, 2015 (within a year prior to the claim), to August 10, 2018, the Veteran's degenerative disc disease of the lumbar spine with IVDS was manifested by functional impairment approximating limitation of forward flexion of the thoracolumbar spine to not greater than 30 degrees; it was not manifested by unfavorable ankylosis of the entire thoracolumbar spine, nor incapacitating IVDS episodes having a total duration of at least 6 weeks during a 12 month period. 2. For the period from August 10, 2018, onward, the Veteran's degenerative disc disease of the lumbar spine with IVDS has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, nor incapacitating IVDS episodes having a total duration of at least 6 weeks during a 12 month period. 3. The preponderance of the evidence is against finding that any current disability of the Veteran's right ankle began during active duty service (or had onset of arthritis within one year following separation from active duty service) or is otherwise etiologically linked to an in-service injury or disease. 4. An RO rating decision dated in October 2007 denied service connection for a left ankle disability. The Veteran was notified of the decision and initiated an appeal but, after readjudication of the matter in the issuance of a June 2009 statement of the case confirming denial of the claim, the appeal terminated when the Veteran did not perfect the appeal for Board review. The Veteran did not otherwise submit new and material evidence within a year of the issuance of the decision (beyond that considered in the June 2009 readjudication for the statement of the case), and the October 2007 denial (with confirmation in the June 2009 statement of the case) became final. All evidence received since the October 2007 denial (with confirmation in the June 2009 statement of the case) is previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for a left ankle disability. 5. An RO rating decision dated in May 2013 denied service connection for a left knee disability; the Veteran was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one-year appeal period. All evidence received since the May 2013 RO rating decision is previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for a left knee disability. 6. An RO rating decision dated in May 2013 denied service connection for a right knee disability; the Veteran was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one-year appeal period. All evidence received since the May 2013 RO rating decision is previously of record, cumulative or redundant of evidence already of record, or does not relate to a previously unestablished fact necessary to substantiate the previously-denied claim of entitlement to service connection for a right knee disability. CONCLUSIONS OF LAW 1. Throughout the period from November 23, 2015 (but no earlier), to August 10, 2018, the criteria for a 40 percent rating, but no higher, for degenerative disc disease of the lumbar spine with IVDS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243. 2. Throughout the period from August 10, 2018, onward, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 and 5243. 3. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for reopening the claim of entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103. 5. The criteria for reopening the claim of entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103. 6. The criteria for reopening the claim of entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from January 1989 to March 1989, and on active duty from August 2001 to April 2002, and from August 2003 to September 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2019, when the Board remanded the case for issuance of a supplemental statement of the case. The case has now returned to the Board and been reassigned to the undersigned Veterans Law Judge (VLJ) for final appellate review. Increased Ratings Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's statements describing symptoms and conditions are competent evidence to the extent that one can describe one's own experiences. However, these statements must be viewed in conjunction with the medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the U.S. Court of Appeals for Veterans Claims ("the Court") held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran's disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Further references to the Veteran's pertinent disabilities are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran's pertinent disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 1. Entitlement to an increased disability rating of 40 percent, but no higher, for degenerative disc disease of the lumbar spine with IVDS, for the period from November 23, 2015, to August 10, 2018, is granted. 2. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with IVDS, for the period from August 10, 2018, onward, is denied. The Veteran contends that he is entitled to higher ratings for his service-connected degenerative disc disease of the lumbar spine with IVDS. He contends that the severity of the disability has been greater than the assigned ratings reflect. The beginning of the rating period for consideration in this case is defined by the date upon which the Veteran filed the claim (beginning with qualifying notice of intent to file the claim) on appeal: February 19, 2016. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The provisions pertinent to the Board's decision in this case are not substantially changed by the new regulations effective February 7, 2021. The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 contemplating IVDS; the disability has previously been rated under Diagnostic Code 5237 contemplating lumbosacral strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V.) specifies that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) specifies that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) specifies that the rating analysis must round each range of motion measurement to the nearest five degrees. Note (5) specifies that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. IVDS (preoperatively or postoperatively) may be evaluated either 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. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrant a 10 percent rating. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating. For purposes of rating under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 directly is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one factor to be considered when evaluating functional impairment. Id. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). It is the intention of the VA rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. The Court recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis. In other words, if the demonstrated functional loss is the functional equivalent of ankylosis. Turning to the particulars of this case, the Veteran is currently in receipt of a 10 percent rating for his lumbar spine disability effective from September 2006 to February 19, 2016, a 20 percent rating effective from February 19, 2016, to August 10, 2018, and a 40 percent rating effective from August 10, 2018, onward. An October 2016 VA examination report documents that the Veteran reported that "Yes," he has "flare-ups of the thoracolumbar spine (back)," and that he described "[d]ecreased range of motion of the back" with "low back pain" associated with "[a]ctivities involving trunk range of motion (bending, twisting) and weight bearing (standing, walking)." The VA examiner noted that the examination was not taking place during such a flare-up. The VA examiner declined to provide an estimate of unobserved exacerbation of functional impairment of range of motion, citing "insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability during flare-ups." There is no clear indication that the VA examiner elicited information from the Veteran or other sources in an attempt to assess the functional loss during the reported flare-ups. The Board finds that the October 2016 VA examination report indicates that the Veteran reported flare-ups and the VA examiner's findings are inadequate to inform an assessment of the extent of disability associated with the functional impairment during the flare-ups. The Board has considered whether a remand for a new VA examination and/or medical opinion is necessary to adequately inform appellate review and resolve this appeal. The Board notes that the Veteran has undergone a more recent VA examination of his back disability for VA rating purposes. The October 2018 VA examination report shows that the Veteran's back disability was clinically observed to limit his forward flexion to 30 degrees, meeting the criteria for a 40 percent rating. Considering that the Veteran reported in October 2016 that he experienced exacerbated impairment during flare-ups, and that the October 2016 VA examiner did not adequately attempt to assess the extent of the unobserved functional impairment during flare-ups, the Board finds it significant that the next VA rating examination report (from October 2018) shows clinical observation of functional impairment more severe than that clinically observed in October 2016. Resolving reasonable doubt in the Veteran's favor, the Board finds that it is appropriate in this case to consider the impairment shown in the October 2018 VA examination report to supply the deficiency of the October 2016 VA examination report. In this light, the Board finds that a 40 percent rating (increased from 20 percent) can be granted from at least as early as the time of the October 2016 VA examination report showing the Veteran's report of exacerbated functional impairment during flare-ups. The Board furthermore finds that there is no significantly contrary indication regarding the severity of the Veteran's back disability between the time of the Veteran's claim for an increased rating (beginning with the qualifying February 2016 notice of intent to file) and the VA examination reports. Resolving reasonable doubt in the Veteran's favor, the Board finds that the award of 40 percent rating can be granted from an effective date at least as early as the February 19, 2016, date of claim in this case. The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as providing that, if the increase occurred within one-year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In this case, the Board is awarding a 40 percent rating for the Veteran's thoracolumbar spine disability effective from at least as early as the February 19, 2016, date of the claim on appeal. The Board has now considered whether any worsening of the disability within one-year prior to the claim warranted an increased rating. The Board finds that worsening of the disability is factually ascertainable within the one-year period prior to the claim. In this regard, a VA treatment report dated November 24, 2015, documents the following: "acute on chronic back[]pain since yesterday. [H]e has had back[]pain for more than 10 years due to a back injury. He gets flareups off and on but this is much worse than before." The Board is satisfied that this report makes a pertinent onset of worsening of the back disability factually ascertainable for the date of November 23, 2015; this is corresponds to the day preceding the VA treatment report identifying onset specifically occurring "yesterday." Resolving reasonable doubt in the Veteran's favor, the Board finds that this exacerbation of the back disability can be accepted to be associated with the 40 percent disabling impairment the Board has found to be sufficiently shown from the February 2016 date of claim. Accordingly, the increased 40 percent rating in this case is warranted from an effective date of November 23, 2015. The Board finds no earlier factually ascertainable date of increase in the severity of lumbar spine disability impairment during the one-year period prior to the claim dated February 19, 2016, to serve as a basis for awarding an increased rating effective from prior to November 23, 2015. The Board has also considered whether the criteria for any rating in excess of 40 percent is warranted in this case. The Board finds that no further increased rating is warranted. The applicable rating criteria provide higher ratings for (1) ankylosis of the entire thoracolumbar spine in an unfavorable position, or (2) incapacitating IVDS episodes having a total duration of at least 6 weeks during a 12 month period. The October 2016 and October 2018 VA examination reports specifically state that the Veteran's spine has no manner of ankylosis, and there is no suggestion in any of the Veteran's descriptions of flare-ups or functional impairment that confines the spine to a functionally fixed and unfavorable position. The Board notes that the October 2018 VA examination report shows that the Veteran's description of functional loss featured being "limited to bending, twisting, laying down. Veteran can't wear his wallet in a pants pocket or a backpack due to increased pain with walking. He is wearing slip on pants now instead of pants with pockets." This is consistent with other evidence and describes the Veteran's notable experience with impairment, and it does not describe impairment compatible with functional ankylosis fixing the spine in an unfavorable position. The Board finds that it is reasonable to expect that the Veteran's description of functional impairment would suggest impairment compatible with functional ankylosis in an unfavorable position if such impairment existed. The Board finds that the Veteran's back disability has not manifested in ankylosis of the entire thoracolumbar spine in an unfavorable position, nor functional loss compatible with such a manner of ankylosis. No rating in excess of 40 percent is warranted on the basis of limitation of motion / ankylosis. The October 2016 and October 2018 VA examination reports also specifically state that the Veteran has not experienced any incapacitating episodes due to IVDS in the 12 months preceding either examination, and there is otherwise no evidence of record showing qualifying incapacitating IVDS episodes having a total duration of at least 6 weeks during a 12 month period. The Board finds that the criteria for a rating in excess of 40 percent on the basis of incapacitating IVDS episodes have not been met. In summary, the Board has found that reasonable doubt can be resolved in the Veteran's favor to award an increased 40 percent rating (but no higher) for the period from November 23, 2015, to August 10, 2018; no rating in excess of 40 percent is warranted for any period, including for the period from August 10, 2018, onward. Beyond this decision's grant of an increased rating, the Board finds that the preponderance of the evidence is against the award of further increased ratings. To the extent that the Board finds that the preponderance of the evidence weighs against further / additional increased ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran and his representative have not raised any other issues in connection with the back disability rating issue on appeal, nor have any other associated issues been reasonably raised by the record in connection with this matter. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain specifically-listed chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) and Fountain v. McDonald, 27 Vet. App. 258 (2015). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. 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. 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. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence of record for this appeal, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 3. Entitlement to service connection for a right ankle disability is denied. The Veteran contends, including as stated in his April 2017 VA Form 9 submission, that he suffers from a "right ankle" disability as a result of one or more "injuries" that "occurred while I was in the military." A review of the Veteran's service treatment records reveals no diagnoses of a right ankle injury or disability, or symptoms thereof. The Board notes that the Veteran's final period of active duty service concluded in September 2006, and a May 2006 service "Report of Medical Examination" shows that clinical examination of his lower extremities revealed no abnormalities, including of the right ankle. Moreover, the Veteran's post-service medical records further weigh against finding in-service incurrence of a right ankle disability. None of the evidence indicates a right ankle disability related to military service, and post-service medical references to left ankle problems are not accompanied by indication of a right ankle disability related to service. Notably, a July 2009 VA medical report shows that the Veteran was experiencing swelling of his right knee after he "[w]ent jogging one week ago, twisted ankle." At that time, the report makes clear that the Veteran "[d]enies any problem with his ankle." The contemporaneous medical evidence of record shows no onset of right ankle disability during service, nor proximately following active duty service (including within one year of separation), nor does the evidence present another basis for finding any right ankle disability causally attributable to the Veteran's military service. The most probative evidence weighs against demonstration of any in-service diagnoses or complaints related to a right ankle disability, or demonstration of a relevant in-service injury, event, or disease. Thus, the second Shedden element of a claim for service connection on a direct incurrence basis is not met. Thus, a VA examination or a medical opinion addressing this matter is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Additionally, as the second element for the claim for service connection for a right ankle disability on a direct-incurrence basis is not met, the third Shedden element for service connection, competent evidence of a nexus between a right ankle disability and an in-service injury, event, or disease, need not be further discussed. The most probative evidence of record shows no in-service event relevant to incurrence or aggravation of a right ankle disability. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a right ankle disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for a right ankle disability, the doctrine of resolution of doubt in the Veteran's favor is not applicable, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Petitions to Reopen Claims Subject to Prior Final Denials Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the phrase "'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, when VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3) (2017). The assertion of a new theory of entitlement to service connection for the same disease or injury that was previously the subject of a final decision does not constitute a new distinct claim for benefits, see Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); however, evidence offered in support of a new theory of entitlement can be sufficient to warrant reopening of the claim if it meets the definitions of new and material evidence. Id. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence questions raised by the Veteran's petitions to reopen claims of entitlement to service connection. For the reasons explained below, the Board is unable to grant the Veteran's petitions to reopen the claims in this case, and the Board is unable to further analyze the merits of the claims underlying these petitions to reopen. 4. The petition to reopen the claim of entitlement to service connection for a left ankle disability is denied. With regard to the left ankle disability claim, a March 2007 RO rating decision and an October 2007 RO rating decision denied service connection for "Left Ankle injury." The evidence of record at the time of the October 2007 denial includes the Veteran's service treatment records, his October 2006 claim asserting that his left ankle disability began in February 2003, and post-service medical records. The basis of the March and October 2007 denials of service connection featured the RO's finding that: "Your service medical records reveal a diagnosis of a left ankle injury which has healed on June 17, 2003. A note dated June 22, 2003, reveal[s] complaints of continued swelling and pain. Although there is a record of a left ankle injury within your service medical records, there is no medical evidence showing the condition occurred during active duty status, active duty for training, or was incurred during inactive duty training." The Veteran was not on active duty in June 2003; his final period of active service began in August 2003. The Veteran did appeal the October 2007 RO rating decision by filing a notice of disagreement in April 2008, and the RO issued a statement of the case in June 2009 that confirmed the denial of service connection for a left ankle disability. The June 2009 statement of the case discusses: On your notice of disagreement you stipulated that your current left ankle condition is the direct result of a left ankle injury that you suffered during your active duty military service. The VA examination performed at the Boston VA Medical Center on May 8, 2008 failed to indicate a diagnosis of or current treatment for a left ankle condition.... The evidence submitted fails to show a current chronic or permanent residual left ankle condition which can be attributed to your in-service treatment for a left ankle injury. The Veteran did not file a timely substantive appeal (VA Form 9) to perfect an appeal of that denial. The Veteran did not submit new and material evidence on this issue within the appeal pendency period associated with the October 2007 rating decision and June 2009 statement of the case beyond what was addressed by those adjudications. 38 C.F.R. § 3.156(b). The October 2007 decision (with its associated June 2009 statement of the case) denying service connection for a left ankle disability is therefore final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. VA medical records referencing the Veteran's 2003 left ankle injury and medical records indicating the Veteran's post-service left ankle complaints were of record at the time of the June 2009 statement of the case's adjudication associated with the prior final denial. A May 2008 VA examination report (discussed in the statement of the case) documents the Veteran's account of: a history of fracture of his left leg at the ankle in the military. He was Aircasted and had physical therapy for two to three months. It is still very tender and swollen and sometimes he cannot walk on it. After elevating it[,] if he puts it down it gives him a great deal of pain and 'kills' him. He was recently diagnosed with tendinitis in the left leg and given ibuprofen but the pain did not go away." The Board finds that the Veteran has not submitted, and VA has not otherwise received, new evidence added to the record since the prior final October 2007 RO rating decision (with its associated readjudication in the June 2009 statement of the case) material to the claim of entitlement to service connection for a left ankle disability. Evidence reiterating that the Veteran has had post-service left ankle symptom complaints, that he experienced a left ankle injury in 2003 (when he was not on active duty), and that he asserts there is an etiological link between his post-service symptom complaints and an in-service injury, is cumulative or redundant of information already of record at the time of the prior final denial. The new evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left ankle disability; the new evidence does not tend to indicate that the Veteran has a current left ankle disability related to the Veteran's military service (the evidence does not include new information tending to establish causation of a current left ankle disability during service or aggravation of a left ankle disability beyond natural progression during military service). 38 C.F.R. § 3.156(a). The Veteran's representative argued, in a June 2017 written statement, that the Veteran "suffered a left ankle injury June 22, 2003 with swelling and pain." This assertion pertains to the Veteran's 2003 history of left ankle injury, and the facts of the Veteran's history of left ankle injury in 2003 were already of record at the time of the prior final denial. The new statement does not pertain to a new unestablished fact necessary to substantiate the claim of service connection. The Veteran's representative also argued, in the June 2017 written statement, that the Veteran's in-service lower extremity complaints, including for the "left ankle," were "all due to his chronic pain he was in due to his groin pain .... radiating pain down both legs." However, this assertion characterizing the nature of the Veteran's in-service lower extremity complaints as radiating pain from a groin disability does not present or identify evidence tending to establish that the Veteran has a current left ankle disability caused or aggravated during his service. Neither does the competent evidence of record tend to indicate that the Veteran has a left ankle disability caused or aggravated by his service-connected right groin lymph dissection with right sided epididymitis. Given that the evidence submitted is not both new and material, reopening of the claim of entitlement to service connection for a left ankle disability is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The petition to reopen the claim of entitlement to service connection for a left knee disability is denied. 6. The petition to reopen the claim of entitlement to service connection for a right knee disability is denied. With regard to the left and right knee disability claims, a May 2013 RO rating decision denied service connection for the claimed knee disabilities. The evidence of record at the time of the May 2013 denials includes lay statements from the Veteran, his service treatment records, post-service medical records, and a May 2013 VA examination report with medical opinion. The basis of the May 2013 denial of service connection featured the RO's finding, as explained in the notice letter to the Veteran, that the Veteran had been diagnosed with degenerative joint disease of both knees, but: "We did not find a link between Degenerative joint disease of [either] knee (claimed as bilateral knee) and military service," and "The evidence does not show that Degenerative joint disease of [either] knee ... developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection." The denial cited that "[t]he VA medical opinion found no link between your diagnosed medical condition and military service." The Veteran did not appeal these denials. No new and material evidence pertinent to these issues was submitted within a year following the May 2013 denial of each claim. 38 C.F.R. § 3.156(b). The May 2013 RO denial is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. Since the May 2013 final decision, additional documents and evidence received by VA, including VA medical treatment records, do not include any indication of any in-service event, disease, or injury causally linked to a current disability of the Veteran's knees; nor onset of arthritis of either knee within a year of the Veteran's separation from service; nor does any evidence otherwise indicate a nexus between the Veteran's military service and his knee disabilities. Indeed, although the Veteran has petitioned for the claim to be reopened, the Veteran has not presented testimony or evidence that indicates any pertinent new information or development that would tend to establish a previously unestablished element of the criteria for entitlement to service connection for the knee disabilities. Accordingly, evidence added to the record after the May 2013 prior denial may be "new," but none of the new evidence is "material" to this claim. The evidence added to the record since the May 2013 prior denial presents no reasonable possibility of substantiating the claims, and such evidence is not "new and material" for the purpose of reopening these claims. Following review of the contents of the claims-file, the Board is unable to find that any item of evidence received since the May 2013 final denials is new and material to the issues of service connection for left or right knee disabilities. Any added material evidence is duplicative of evidence already of record, and the new evidence is not materially pertinent to elements of service connection that were unestablished at the time of the prior final denials. The prior final denials were based upon the absence of a showing of a nexus between the Veteran's knee disabilities and his military service, and none of the evidence submitted after the prior final denials has shown such a nexus. The new documentation added to the claims-file essentially reiterates that the Veteran continues to believe that he is entitled to service-connection for his current knee disabilities. This information, together with the Veteran's diagnoses of degenerative joint disease of both knees, was known and considered at the time of the prior final decision and has not been in controversy in the denial of service connection for the knee disabilities. The Veteran's representative argued, in a June 2017 written statement, that the Veteran's in-service lower extremity complaints, including for the "right knee," were "all due to his chronic pain he was in due to his groin pain .... radiating pain down both legs." However, this assertion characterizing the nature of the Veteran's in-service lower extremity complaints as radiating pain from a groin disability does not present or identify evidence tending to establish that the Veteran has a current knee disability caused or aggravated during his service. Neither does the competent evidence of record tend to indicate that the Veteran has a knee disability caused or aggravated by his service-connected right groin lymph dissection with right sided epididymitis. Overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for left and right knee disabilities. For the above-discussed reasons, the Board concludes that the appellant has not presented new and material evidence to reopen his claims of service connection for left and right knee disabilities. Accordingly, these petitions to reopen the claims must be denied. See 38 U.S.C. § 5108. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, Counsel 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.