Citation Nr: 21067546 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-35 384 DATE: November 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee patellofemoral arthritis is denied. Entitlement to a disability rating in excess of 10 percent for right knee medial-lateral instability is denied. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for left knee medial-lateral instability is denied. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder (claimed as depression) is reopened. Entitlement to service connection for depression is granted. Whether new and material evidence has been received to reopen a claim for service connection for hypertension is dismissed. Whether new and material evidence has been received to reopen a claim for service connection for gout is dismissed. Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability is dismissed. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability (claimed as triple bypass-heart with defibrillator/pacemaker) is dismissed. Whether new and material evidence has been received to reopen a claim for service connection for diabetes is dismissed. Entitlement to service connection for Veteran's cause of death is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee patellofemoral arthritis is manifest by no worse than painful motion and limited ambulation with no objective evidence of flexion limited to 30 degrees or more. 2. The Veteran's right knee medial-lateral instability is manifest by no worse than slight symptoms. 3. The Veteran's left knee osteoarthritis is manifest by no worse than painful motion and limited ambulation with no objective evidence of flexion limited to 30 degrees or more. 4. The Veteran's left knee medial-lateral instability is manifest by no worse than slight symptoms. 5. The Veteran's degenerative joint disease of the lumbar spine is manifest by than forward flexion of the thoracolumbar spine to 60 degrees with combined range of motion of 120 degrees. 6. In a March 2017 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for an acquired psychiatric disorder; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 7. Evidence associated with the record since the March 2017 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 8. Resolving all reasonable doubt in the Appellant's favor, the Veteran's unspecified depression disorder and unspecified anxiety disorder are proximately due to or aggravated beyond their natural progression by his service-connected lumbar spine, right shoulder, and bilateral knee disabilities. 9. In September 2021, the Board of Veterans' Appeals (Board) received notification that the Appellant wished to withdrawal the appeal as to the issue of whether to reopen a claim of service connection for hypertension. 10. In September 2021, the Board received notification that the Appellant wished to withdrawal the appeal as to the issue of whether to reopen a claim of service connection for gout. 11. In September 2021, the Board received notification that the Appellant wished to withdrawal the appeal as to the issue of whether to reopen a claim of service connection for a left shoulder disability. 12. In September 2021, the Board received notification that the Appellant wished to withdrawal the appeal as to the issue of whether to reopen a claim of service connection for a heart disability (claimed as triple bypass-heart with defibrillator/pacemaker). 13. In September 2021, the Board received notification that the Appellant wished to withdrawal the appeal as to the issue of whether to reopen a claim of service connection for diabetes. 14. The Veteran died in October 2018; the immediate cause of death listed on the death certificate was renal failure with contributory causes of an acute injury on chronic kidney disease and sepsis. 15. The best medical evidence of record shows that the Veteran's death due to renal failure and chronic kidney disease is secondary to the medication of the Veteran's service-connected back, knees, and shoulder disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee patellofemoral arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 2. The criteria for a disability rating in excess of 10 percent for right knee medial-lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 10 percent for left knee medial-lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 5. The criteria for a rating in excess of 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 6. The criteria for reopening the previously denied claim for service connection for psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for an acquired psychiatric disorder, unspecified depressive disorder, and unspecified anxiety disorder, have been met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for withdrawal of an appeal by the Appellant have been met as to the issue of whether new and material evidence has been received to reopen a claim for service connection for hypertension. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 9. The criteria for withdrawal of an appeal by the Appellant have been met as to the issue of whether new and material evidence has been received to reopen a claim for service connection for gout. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 10. The criteria for withdrawal of an appeal by the Appellant have been met as to the issue of whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 11. The criteria for withdrawal of an appeal by the Appellant have been met as to the issue of whether new and material evidence has been received to reopen a claim for service connection for a heart disability (claimed as triple bypass-heart with defibrillator/pacemaker) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 12. The criteria for withdrawal of an appeal by the Appellant have been met as to the issue of whether new and material evidence has been received to reopen a claim for service connection for diabetes. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 13. The criteria for service connection for Veteran's cause of death have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to April 1990. The Veteran died in October 2018. The Appellant is the Veteran's widow. These matters are on appeal from August 2018 and January 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The RO denied twelve matters in August 2018 which remained pending when the Veteran died. The Appellant has been substituted for the Veteran for those claims. The Appellant is the original claimant for her claim of service connection for the Veteran's cause of death. The Board notes it originally issued a decision in January 2021. In July 2021, the Board then completely vacated the January 2021 decision. This decision now addresses the 12 issues pending when the Veteran died and the Appellant's claim for service connection for the Veteran's cause of death. The Board also notes that in March 2020, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to a rating in excess of 10 percent for right knee patellofemoral arthritis 2. Entitlement to a disability rating in excess of 10 percent for right knee medial-lateral instability 3. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis 4. Entitlement to a rating in excess of 10 percent for left knee medial-lateral instability The Board has grouped these issues together as the Board has determined that the disabilities involve similar disabilities, diagnostic codes, facts, and analysis. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. 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 (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself 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 [or 4.73] criteria.").] The Veteran had a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, for right knee arthritis and left knee arthritis. In addition, the Veteran had a 10 percent disability rating 38 C.F.R. § 4.71a, Diagnostic Code 5257 for medial-lateral instability in both knees. The appeal stems from a June 2018 claim. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. In this case the evidence does not reflect, and neither the Veteran nor the Appellant allege that he had any meniscal disability symptoms during the relevant period. As such, these diagnostic codes are not for application. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). As the Veteran died before the rating criteria change, i.e., prior to February 7, 2021, the Board will consider only the prior version of the diagnostic code. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, "severe" represented the highest or most extreme level of disability. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Initially, the Board notes that a March 2017 rating decision denied a rating higher than 10 percent for either right or left knee arthritis. The same rating decision also denied a rating higher than 10 percent for medial-lateral instability in either knee. The Veteran did not file a notice of disagreement and VA did not receive any relevant evidence within one year after mailing the March 2017 rating decision. Thus, the rating decision became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). In June 2018 the Veteran resubmitted a copy of the same VA 21-526EZ, Fully Developed Claim form filed in November 2016. In July 2018, VA attempted to schedule a VA examination to determine the severity of the Veteran's knee disabilities, but the Veteran was unavailable. No exam occurred before the Veteran's death. In June 2018 the Veteran also resubmitted a copy of a form VA 21-8940 specifying that his "back and knees" disabilities prevented him from working. The Veteran did not submit any additional lay statements, medical treatment records, or other evidence showing any change in the severity of his right knee arthritis between June 2017 and October 2018. Since her substitution, the Appellant has not provided any medical evidence showing the severity of the Veteran's right knee or left knee arthritis and/or instability during the period on appeal. The Appellant and her daughter submitted statements that back and knee pain caused the Veteran to fall several times (at least once every two weeks). Further, the Veteran had to go up stairs backwards. Walking or standing too long caused an increase in pain. The last VA knee examination before the Veteran's death to determine the severity of the Veteran's knee disabilities occurred in February 2017. The Veteran reported limited ambulation and chronic aching knee pain. He denied swelling, locking, instability, flare ups, and decreased function with repeated use over time. On examination, both knees had normal range of motion. The VA examiner did not observe any objective signs of pain with movement or with weight bearing. Range of motion remained the same bilaterally after three repetitions. The VA examiner did not elicit any tenderness or crepitus. The examiner also determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. After testing, each knee had normal strength and stability. There was no recurrent subluxation. The Veteran did not have ankylosis, current meniscus problems following 1980 meniscus surgery in each knee, tibial and/or fibular impairment of the knee and/or lower leg, or any other knee impairment. At the examinations, the examiner asked the Veteran about pain, flare-ups, and functional limitations, and performed relevant testing, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. The February 2017 VA examiner noted the Veteran did not report flare-ups or functional loss from repeated use over time. The examiner also concluded that if a flare-up occurred or with repetitive use over time, the Veteran's functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion for both knees during a flare-up or after repetitive use over time. Treatment records, which include VA Medical Center treatment records current through October 2018, do not show greater limitation of motion than the examination findings. Those records also did not focus on arthritis or instability in either knee. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral knee arthritis. Because the Veteran's most recent VA examination showed he had full range of motion in each knee without objective evidence of pain, and the more recent medical evidence of record shows no indication of limited flexion of the right knee, no rating greater than 10 percent for either knee is warranted under Diagnostic Code 5260. The Board also finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee or left knee instability under Diagnostic Code 5257. The Board has carefully considered the record and found no other lay statements or medical records that discuss the Veteran's right or left knee instability during the period on appeal. The Veteran reported no instability or subluxation. The lay statements from the Appellant and her daughter reflect falls but do not distinguish which knee would give out versus the other one. Furthermore, the statements do not establish that a fall occurred due to instability versus an involuntary reaction to pain. Notably, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by the VA examiner, a medical professional, and the testing revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran's lay statements. While the Veteran may have experienced a feeling that his knee may give way or is unstable, or the Appellant noticed what appeared to be instability, if subluxation or instability were present, as required for a higher rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. Further, the examiner, having reviewed the record, was well aware of reports of instability such as a prior January 2011 statement by his wife that the Veteran's knees would give way and he needed to grab onto his wife for support. Nevertheless, the examiner still found that, overall, there was no history of recurrent subluxation or instability. The medical opinion was a fully informed one made based on diagnostic testing results and consideration of the Veteran's statements. The finding of the VA examiner regarding instability or subluxation is the most probative evidence on this point. Overall, the lay and medical evidence indicates that the Veteran's right knee and left knee instability symptoms did not more nearly approximate moderate severity during the period on appeal. The Board acknowledges the Veteran's and the Appellant's lay reports of symptoms and that there was functional loss due to pain and limited ambulation. However, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had pain and limited ambulation would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or instability of moderate severity. The Veteran's statement that his back and knees prevented him from working, without further specification, is also not sufficient to support a finding that his limitation of motion more nearly approximated flexion limited to 30 degrees, or moderate instability. In a similar manner, the Appellant's statements do not disclose limitations demonstrating more limited flexion or instability ratings for each knee especially as the Appellant did not distinguish the symptoms she observed as to each knee and could only state the Veteran's knees did not work correctly. The Board has carefully considered the record and found no lay statements or medical records that discuss the Veteran's knee flexion or instability during the period on appeal to warrant a higher rating. The February 2017 VA examination, which was at least close to the period on appeal, did not show any worsening of the Veteran's flexion or instability in each knee. Overall, the lay and medical evidence indicates that the Veteran's symptoms did not more nearly approximate moderate instability severity or flexion approximating flexion limited to 30 degrees or less during the period on appeal The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment Diagnostic Code 5261 covers limitation of extension of the leg. While the Veteran reported knee pain with limited ambulation, he did not mention limited extension and no VA exam or medical records, nor the Appellant's statements show limited extension. As noted above, the Veteran did not have tibia or fibula impairment, genu recurvatum, or ankylosis of either knee and for the period in appeal, meniscus symptoms such as effusion or locking even though he apparently had meniscus surgery in the 1980s. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's and now the Appellant's claim for a rating in excess of 10 percent for right and left knee arthritis and for right and left knee medial-lateral instability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine The Appellant contends that the Veteran was entitled to a higher rating because the Veteran's degenerative joint disease of the lumbar spine (lumbar spine arthritis) was worse than as recognized and compensated by a 20 percent rating. The procedural history for the knee claims as stated above also applies to the increased rating claim for the back. Namely, after denial of an increased rating for the back in March 2017, the record does not contain any other medical evidence regarding functional limitations for the back and the last VA examination before the Veteran's death to determine the severity of the Veteran's back disability occurred in February 2017. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5 Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. Thus, the IVDS Formula is not for application in this instance. The last VA last examination to determine the severity of the Veteran's lumbar spine arthritis occurred in February 2017, approximately four months before the start of the relevant period on appeal. See, e.g., 38 C.F.R. § 3.400 (o) (2). The Veteran reported stiffness and chronic aching pain that caused difficulty with standing or sitting for long periods. He denied flare-ups, decreased function with use over time, and radicular symptoms. On examination the Veteran had lumbar spine forward flexion to 70 degrees and combined range of motion of 220 degrees. The range of motion did not change after three repetitions of testing. The VA examiner did not observe objective signs of pain with movement or with weight bearing nor elicit tenderness, muscle spasms, or guarding. The Veteran had normal deep tendon reflexes and lumbar strength. The VA examiner did not find any signs of radiculopathy, bowel impairment, or bladder impairment. The examiner also determined the Veteran did not have intervertebral disc syndrome. X- rays confirmed arthritis and no evidence of thoracic vertebral fracture with loss of 50 percent or more of height. At the examinations, the examiner asked the Veteran was about pain, flare-ups, and functional limitations, and performed relevant testing, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the February 2017 examination, the Veteran denied flare-ups of the disability. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher rating. The VA examiner concluded that during a flare-up or with repetitive use over time functional ability would not be significantly limited by pain, weakness, fatigability, or incoordination. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up and after repetitive use over time. Medical evidence from the period on appeal, including VA Medical Center treatment records current through October 2018, did not show greater limitation of motion than the examination findings. Treatment also did not focus on the Veteran's lumbar spine arthritis. The lay statement related to this disability includes the Veteran's claim that his knees and back prevented him from working. The Appellant and her daughter submitted statements but only stated the back pain caused problems with walking and standing. Travelling required frequent breaks and he needed a pillow to support his back. She had to help him put on his shoes. Even considering the lay reports of symptoms and functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Given the above, a higher rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Spinal Formula. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. Upon examination, the February 2017 VA examiner reported the Veteran had normal relevant neurological findings and a negative history. There is no other evidence in significant conflict with these findings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately assigned disability rating. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran did not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection 6. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder (claimed as depression Because the evidence indicates that the Veteran may have different conditions or diagnoses for the psychiatric claim, the Board is expanding the scope of the claim to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's claim of service connection for an acquired psychiatric disorder in a March 2017 rating decision, finding that no acquired psychiatric disorder or symptoms occurred in service and no link between service and any current psychiatric disability. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2016). The evidence received since the March 2017 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Appellant submitted a physician's opinion in September 2021 that attributed the Veteran's depression from the symptoms related to his service connected back and knee disabilities and how the symptoms limited his functioning. This new evidence addresses the reason for the previous denial; that is, a nexus to service- connected disabilities, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 7. Service connection for an acquired psychiatric disorder Although the claim for service connection for an acquired psychiatric disorder is reopened, the RO never adjudicated the claim on the merits. Generally, where the Board reopens a claim, but the RO did not, the case must be remanded for RO consideration. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (a claim reopened by the Board after the RO has denied reopening that same claim must be returned to the RO for consideration of the merits). The Board may proceed if it finds the claimant would not be prejudiced by proceeding to the merits. Hickson, 23 Vet. App. at 400. The Board will proceed to the merits of the claim without prejudice to the Appellant since the outcome is favorable to the Appellant. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as psychoses. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The medical records reflect the Veteran has been diagnosed with a psychiatric diagnosis as early as August 2003 when the Veteran was diagnosed with anxiety state and adjustment disorder with mixed anxiety and depressed mood. In December 2012, the Veteran had a diagnosis of anxiety disorder NOS. In February 2017, a clinician diagnosed the Veteran with depression pursuant to the criteria for the DSM-5. 38 C.F.R. §§ 3.384, 4.125. More recently, the Veteran has been diagnosed with unspecified depressive disorder and unspecified anxiety disorder. In April 2021, the Appellant submitted a medical opinion by a psychologist who concluded as likely as not that the Veteran's service- connected right shoulder, back, and knee conditions caused the Veteran's mental health issues. As support, the psychologist noted the Veteran struggled with bilateral knee pain, back pain, and shoulder pain. In addition, the disabilities significantly reduced function and caused multiple physical limitations. Citing medical literature, the examiner noted a correlation between pain and depression. Service treatment records, including the separation examination, were negative for depression or depression symptoms. On the other hand, the Veteran's depression and anxiety worsened in tandem with the progression of his service- connected knee, back, and right shoulder disabilities. There is no prohibition against a veteran being service connected for more than one diagnosed psychiatric disorder; see Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that different psychiatric diagnoses may have symptoms that are not overlapping); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). The private psychologist determined that it was not possible to separate the disabilities due to symptoms overlapping. Thus, it cannot be stated that the Veteran's symptoms are not overlapping and that he has two distinct mental health disabilities The Board notes that the Veteran had an unhappy childhood. As a result, he had anger problems and got into fights in school. This evidence raises the possibility the Veteran entered service with a pre-existing mental health disability. A mental health disability was not noted on the examination itself and the Veteran was presumed to have been in sound condition upon entry to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that the Veteran's disability both preexisted service and was not aggravated by service. 38 C.F.R. § 3.304 (b). As there is no clear and unmistakable evidence of a mental health disability pre-existing service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Further, the April 2021 private psychologist addressed the Veteran's childhood. The psychologist acknowledged the Veteran had some adjustment or behavior issues when he was young but there is no evidence of continuity into adulthood including service as both the entrance and separation examination did not disclose any mental health issues. Instead, his current mental health symptoms increasingly reflected "the profound negative impact of his back, knee, and shoulder pain." There are no contrary opinions of record nor medical evidence that is in significant conflict with the opinion of the private psychologist. The Board concludes that the Veteran has a current psychiatric disability that began because of the symptoms and functional limitations of his bilateral knees, back, and right shoulder disabilities. Service connection is therefore granted for unspecified depressive disorder and unspecified anxiety disorder. 8. Whether new and material evidence has been received to reopen a claim for service connection for hypertension 9. Whether new and material evidence has been received to reopen a claim for service connection for gout 10. Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability 11. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability (claimed as triple bypass-heart with defibrillator/pacemaker) 12. Whether new and material evidence has been received to reopen a claim for service connection for diabetes 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, in a September 2021 statement the Appellant withdrew her appeal as to the issues of new and material evidence to reopen service connection claims for hypertension, gout, diabetes, and the left shoulder. As there remain no allegations of errors of fact or law for appellate consideration regarding the issues of hypertension, gout, diabetes, and the left shoulder, the Board does not have jurisdiction over these issues, and they are dismissed. 13. Entitlement to service connection for Veteran's cause of death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death; combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312 (c)(2). The Appellant asserts that the Veteran's death was the result of those disabilities that had been service-connected at the time of the Veteran's death. The Veteran had been service connected for right and left knee arthritis, right and left knee instability, right shoulder supraspinatus tendonitis, and now an unspecified depressive disorder and an unspecified anxiety disorder. The Veteran died in October 2018. The death certificate lists the primary cause of death as renal failure with contributing causes of an acute injury on chronic kidney disease and sepsis. The Board finds the cause of death is accurately reflected on the death certificate, as there is no evidence that it is inaccurate. At the outset, the Board notes that whether the Veteran had a disability that could be service-connected and either caused or contributed to his deterioration and death cannot be determined by lay observation alone. The Board finds that determining principal and contributory causes of death is not within the realm of knowledge of a non-expert given the complicated interplay of the Veteran's various other diagnoses. See Layno v. Brown, 6 Vet. App. 465 (1994). Whether the symptoms a Veteran experienced in service or following service are in any way related to his current disability (or in this case death) is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Direct Service Connection A review of the Veteran's service treatment records shows no treatment for or complaints of a kidney symptom or disease. A review of post-service VA and private medical treatment records shows that the Veteran had a diagnosis of kidney symptom or disease by April 2018 decades after service. There is no probative medical evidence of record that would provide a link between the Veteran's active duty service and kidney diagnosis such as chronic kidney disease. Both VA and private treatment records show the Veteran was not diagnosed with any kidney disorder until decades after his separation from service and decades outside of the applicable presumptive period. Thus, while some kidney disorders are chronic diseases, in this case they cannot be presumed to have been incurred in service. Thus, the preponderance of the evidence is against finding that a nexus exists between the Veteran's death and an in-service injury, event, or disease. Based on the best medical evidence of record, the Board finds that direct service connection for the Veteran's cause of death is not warranted. The post-service medical records provide particularly negative evidence against this claim. Death Due to or Caused by Service-Connected Disabilities In September 2021, the Appellant submitted a medical opinion by a physician who concluded the Veteran's service connected back and knee conditions significantly limited his ability to participate in an adequate amount of physical activity to promote weight control. With limited ability to stand, walk, or even sit, the Veteran had extremely limited exercise capacity which would have led to his obesity significantly aggravating his diagnosed hypertension and diabetes mellitus which led to his cause of death. Furthermore, research has shown high cumulative nonsteroidal anti-inflammatory drugs, such as Aleve, is associated with increased risk for rapid progression of kidney disease. Therefore, the physician also concluded the Veteran's chronic use of naproxen for pain control secondary to his service- connected disabilities also contributed to the Veteran's cause of death. There is no medical evidence in significant conflict with the April 2021 opinions. The Appellant has submitted evidence that the Veteran used naproxen (commonly known as Aleve) to alleviate his knee and back pain, sometimes consuming up to 6 pills at a time. The July 2021 medical opinion is problematic concerning back and knee disabilities aggravating hypertension and diabetes which in turn caused or aggravated the kidney condition. The Appellant has withdrawn appeals of whether the hypertension and diabetes are service connected. Nevertheless, the Board does not need to address this opinion. The physician also determined that the medication used by the Veteran to alleviate knee and back pain also contributed to the kidney condition resulting in death. Upon review, the Board finds this positive opinion to be the most probative evidence with respect to service connection for the Veteran's death. Thus, the best medical evidence of record establishes that medication for service- connected disabilities contributed substantially or materially to the cause of death; combined to cause death; or that it aided or lent assistance to the production of death. Accordingly, entitlement to service connection for the cause of the Veteran's death is warranted and the claim is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities alone, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," provides that a TDIU may be assigned when a disabled Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities alone. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, this disability must be ratable at 60 percent or more. Id. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Either the Board or the agency of original jurisdiction (AOJ) (here, the RO) can grant a schedular TDIU in the first instance. The second, called an "extraschedular TDIU," does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance. 38 C.F.R. § 4.16 (b). Rather, the Board may only consider whether referral to VA's Director, Compensation Service for an opinion on the issue is appropriate. Id. As noted above, at the time of his death, the Veteran was service connected for a lumbar spine disability rated at 20 percent, right knee arthritis rated at 10 percent, right knee instability separately rated at 10 percent, left knee arthritis rated at 10 percent, and left knee instability separately rated at 10 percent. He was also service connected for a right shoulder disability rated at 20 percent. The Veteran had raised TDIU along with his claims for a higher rating. The Veteran's combined disability rating was 60 percent for the entire period on appeal. He therefore did not qualify for a schedular TDIU. See 38 C.F.R. § 4.16 (a). Therefore, the question as appealed to the Board is whether the evidence supports a referral to the Director, Compensation Service for an opinion on whether an extraschedular TDIU is warranted. However, the Board has now determined that the Veteran's unspecified depressive disorder and unspecified anxiety disorder should also be service connected. The next step is for the RO to assign a rating to the psychiatric disorders. As a result of the rating, the Veteran's disabilities may meet the criteria for a schedular TIDU and the Appellant would be entitled to a determination by the RO as to whether all of the disabilities, musculoskeletal and psychiatric, warranted a TDIU. The Board finds that this claim is inextricably intertwined with the Veteran's psychiatric claim and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). After the RO assigns a rating to the service- connected disabilities, it should issue a new decision regarding to the Veteran's entitlement to TDIU before he died. The matters are REMANDED for the following action: After any additionally indicated development has been completed, the RO shall determine the rating to be assigned for the Veteran's unspecified depressive disorder and unspecified anxiety disorder. Then, the record should again be reviewed, and the RO shall readjudicate the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Appellant's satisfaction, send the Appellant and her attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.