Citation Nr: 21073088 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 10-25 813 DATE: December 7, 2021 ORDER Entitlement to an effective date earlier than July 23, 2015, for the grant of service connection for migraine headaches is denied, Service connection for tinnitus is denied. Service connection for prostate cancer is denied. Entitlement to a rating in excess of 20 percent for peptic ulcer disease is denied. Entitlement to a rating in excess of 10 percent for residuals of fracture of the right thumb, with degenerative changes is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 50 percent for migraine headaches is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to January 7, 2013 is remanded. Entitlement to special monthly compensation (SMC) due to the need for aid and attendance is remanded. FINDINGS OF FACT 1. Prior to July 23, 2015, there was no claim or written intent to file a claim for entitlement to service connection for headaches. 2. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran was not exposed to herbicide agents. 4. The Veteran's prostate cancer was not first manifested on active duty and is not otherwise shown to be related to service. 5. For the entire appeal period, the Veteran's peptic ulcer disease has been manifested by moderate symptoms with recurring episodes of severe symptoms 4 or more times a year but lasting less than 10 days. 6. The Veteran's right thumb disability manifests in a gap of less than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, even when considering functional loss due to pain, weakness, fatigability, incoordination, pain on movement, repetitive motion, or flare-ups. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 23, 2015, for the grant of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2021). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 4. The criteria for a rating in excess of 20 percent for service-connected peptic ulcer disease have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114 Diagnostic Code 7305 (2021). 5. The criteria for a rating in excess of 10 percent for service-connected residuals of fracture of the right thumb, with degenerative changes have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5299-5228 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to September 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2009, July 2014, November 2015, and October 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in October 2012, February 2017, and March 2020 when it was remanded for further development. In the March 2020 remand, the issue of entitlement to SMC on housebound basis and entitlement to service connection for posttraumatic stress disorder (PTSD) were also remanded. Following subsequent development, in a June 2020 rating decision, the RO granted SMC based on housebound criteria and service connection for unspecified depressive disorder (claimed as PTSD, depression, and anxiety). In addition, the Veteran, in a May 2020 statement, withdrew his claim for service connection for PTSD. As the benefits sought on appeal have been granted and the Veteran has indicated he no longer wishes to pursue a claim for service connection for PTSD, the issues have been resolved and are no longer before the Board. Effective Date The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. If a claim of service connection is received within one year after separation from active service, an award of service connection will be effective the day following separation from service or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. 38 C.F.R. § 3.155; 79 Fed. Reg. 57695 (Sept. 25, 2014). However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Id. "Application" is not defined by 38 U.S.C. § 5110(a). However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define "claim," informal as well as formal, as a "communication in writing." Id. Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out that the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicate an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." However, medical evidence reflecting treatment for and diagnosis of a disorder does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a), "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that disorder. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). Review of the claims folder shows that on July 23, 2015, more than one year after the Veteran's separation from active service, VA received a VA Form 21-526EZ, Veteran's Application for Disability Compensation and Related Compensation Benefits, seeking service connection for headaches. On the form the Veteran did not indicate that he previously applied for VA compensation, and did not provide a file number. In an October 2018 DRO decision, service connection for migraine headaches (claimed as headaches) was granted, effective July 23, 2015. In determining whether the Veteran is entitled to an earlier effective date, the Board must consider whether a claim for headaches was filed prior to July 23, 2015. However, there is no evidence in the record of a formal claim prior to July 23, 2015, or an informal claim received prior to March 24, 2015, seeking service connection for headaches. There are no communications or any other evidence in the claims file related to an intent to seek benefits for headaches prior to July 23, 2015. The Board acknowledges that VA treatment records prior to July 23, 2015 note the Veteran complaining of headaches. However, as indicated above, any medical evidence reflecting treatment and diagnosis of a condition does not constitute, by itself, an informal claim for service connection under 38 C.F.R. § 3.155(a), "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). The Board has no option but to decide this claim in accordance with the applicable law. As such, the appeal for an effective date earlier than July 23, 2015 for the grant of service connection for migraine headaches must be denied because the earliest possible effective date provided by law, that is, the date of the Veteran's claim, has already been assigned. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus The Veteran seeks service connection for tinnitus. However, the Board finds that service connection is not warranted in this case. The Veteran's service treatment records are absent for complaints, treatment, or diagnosis of tinnitus. During an October 2015 VA audiological examination, the examiner indicated that the Veteran did not report recurrent tinnitus. A January 2017 VA treatment record notes that the Veteran reported having tinnitus. In July 2017 and July 2018, the Veteran stated that he has had tinnitus at times for a long time. A September 2018 VA examiner indicated that tinnitus was less likely than not related to service because there was no hearing loss or tinnitus reported in service. The examiner indicated that since tinnitus was not reported to the examiner at the time of the October 2015 VA examination, information on circumstances of onset was unknown. A February 2021 VA examiner noted that the Veteran had military noise exposure from guns, tanks, heavy equipment, aircraft, generators, and from Naval ships. The Veteran also had post-service noise exposure from working in construction. The Veteran reported recurrent tinnitus which onset in 1980, which consisted of intermittent ringing, and that it was rare in occurrence. The examiner indicated that it was less likely than not related to service because there was no significant change in hearing noted in service. The examiner considered the Veteran's MOS and military noise exposure, but also indicated that the Veteran had a significant amount of post military noise exposure in construction. The examiner also indicated that the Veteran may not have reported tinnitus in October 2015 as he may not have been asked if it was not on the claim. This was the only possible explanation other than that the Veteran denied experiencing tinnitus, and that one would expect that the examiner would write that tinnitus was denied. The Board acknowledges that the Veteran's MOS in service was that of a Rifleman, which has a high probability of exposure to hazardous noise. However, the Veteran has not indicated having tinnitus during service or experiencing tinnitus within one year of separation from active service. Rather, the Veteran indicated onset of tinnitus in 1980, seven years after separation from service. The Veteran has also not indicated that he had tinnitus in service that continued since service. The Board gives probative weight to the February 2021 VA opinion as she provided a rationale that considered the Veteran's service and post-service history. The VA examiner, following an examination of the Veteran and review of the evidence, determined that the Veteran's tinnitus was less likely than not a result of military noise exposure and was more likely due to post-service military exposure from working in construction. It is not in dispute that the Veteran was exposed to noise during service or that he currently has tinnitus. The issue is medically complex, and consequently, the Board gives more probative weight to the competent medical evidence concerning a nexus between the two. Furthermore, the Veteran has not contended that he first experienced tinnitus during service and that such has continued since that time. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim, therefore the benefit of the doubt rule does not apply, and the claim for service connection for tinnitus must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Prostate Cancer The Veteran is seeking service connection for prostate cancer as due to exposure to herbicide agents. At his hearing before the Board in February 2011, the Veteran stated that he was exposed to herbicide agents while in Okinawa, Japan while serving in the northern training area. He also indicated that he was going on a ship when stationed in Okinawa and it was possible that it could have docked in Vietnam or South Korea. In a November 2018 statement, the Veteran stated that in 1973 he stated that he was told he was in the badlands off Vietnam and going to South Korea. He has not indicated that he set foot in Vietnam. Generally, to establish service connection a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA treatment records show that the Veteran was diagnosed with prostate cancer in December 2007. The question for the Board is whether the current disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Diseases associated with exposure to certain herbicide agents, including prostate cancer, will be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309(e). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or served in or near the Korean DMZ between September 1, 1967, and August 31, 1971, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116, 1116B; 38 C.F.R. § 3.307. Additionally, a veteran who during active military, naval, or air service served offshore of the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Offshore of the Republic of Vietnam includes a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia. 38 U.S.C. § 1116A. Service personnel records show that the Veteran served on active duty from June 1972 to September 1973 and had 5 months, 21 days of foreign and/or sea service. His military occupational specialty was that of Rifleman. Records confirm he served in Okinawa in 1973. An October 2018 request for review of Department of Defense (DOD) inventory of herbicide operations indicated that the DOD had not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for combat jungle operations in Vietnam and was used from 1962 to 1971. There were no combat operations in Okinawa during those years and Okinawa was not on the shipping supply line, which went directly from storage at Gulfport, Missouri to South Vietnam via merchant ships. Also, the use of Agent Orange was terminated in 1971, 2 years before the Veteran's claimed exposure. A request was sent to the National Archives and Records Administration (NARA) in October 2018, and they responded in November 2018 indicating that they located the command chronology for the Veteran's unit, which outlined the location, command, and activities of the unit and its subordinate companies during the designated time period. However, these records do not contain evidence to verify use of herbicide agents and exposure to herbicide agents during the Veteran's service. The Board remanded the claim in March 2020 for the RO to undertake all appropriate development regarding herbicide agent exposure in South Korea and the offshore waters of Vietnam. However, despite requesting information from the Veteran in June and July 2020, the Veteran did not provide approximate dates, location(s), and nature of the alleged exposure. The Veteran was notified in the May 2021 Supplemental Statement of the Case that since he did not respond to the request for information, herbicide agent exposure could not be verified. Thus, based on the foregoing, the Board finds that the Veteran is not presumed to have been exposed to herbicide agents, and thus, is not entitled to a presumption of exposure to herbicide agents in service. A layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the Veteran lacks competence to determine that he was actually exposed to Agent Orange in Okinawa, Korea, Vietnam, or the waters offshore of Vietnam as such a matter is not within his personal knowledge. Furthermore, DoD records do not identify Okinawa as being associated with herbicide agents during the Veteran's service. The Board further notes that there is no other objective, persuasive evidence that the Veteran was actually exposed to herbicide agents, to include Agent Orange, in service, as alleged. Moreover, as indicated above, because the Veteran never responded to the RO's request, pursuant to the Board's prior remand, seeking further information from the Veteran pertaining to his alleged herbicide agent exposure in Korea or in the offshore waters of Vietnam, no further development in this regard is warranted. Therefore, presumptive service connection based on herbicide agent exposure is not applicable. Service connection for prostate cancer may still be granted on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). However, the Veteran's service treatment records are silent for prostate cancer while in service. The Veteran has also presented no evidence in support of service connection for prostate cancer as directly related to service, and exposure to herbicide agents has not been conceded. The record shows that the Veteran's diagnosis of prostate cancer came approximately thirty-four years after his separation from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of prostate cancer complaints, symptoms, or findings for over three decades between the Veteran's military service and the earliest evidence of prostate cancer is itself evidence which tends to show that prostate cancer did not have its onset in service or for many years thereafter. There is no competent and credible evidence of a link to service, therefore, service connection for prostate cancer on a direct basis is denied. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit of the doubt rule does not apply, and the claim for service connection for prostate cancer must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Peptic ulcer disease The Veteran's peptic ulcer disability is rated under Diagnostic Code 7305, which provides for a 20 percent rating when it is moderate with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is warranted when it is moderately severe, with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted with it is severe, with severe pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss productive of definite impairment of health. The terms "mild," "moderate," and "severe" are not defined in the Schedule of Ratings. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent a VA examination in February 2008, where it was noted that he had throbbing epigastric pain. The Veteran did not have nausea, vomiting, melena, or hematemesis. He did not have chest pain but had some right arm pain. He lost about 12 pounds in the past year without dieting. His appetite decreased but he had not had incapacitating episodes. The February 2008 VA examiner provided an addendum opinion in January 2009, where the examiner stated that the Veteran's most recent CBC in October 2006 was normal with hematocrit of 41.9 and hemoglobin of 14.7 grams. The examiner indicated that there was no evidence of any anemia. It was the examiner's opinion that the Veteran's previous anemia and weight loss were not related to his peptic ulcer disease. A letter received in August 2009 from Dr. K.G., the Veteran's VA doctor, indicated that he weighed 214.4 pounds in February 2006 and 193.4 in February 2007 and dropped to 186.9 in September 2007. His blood count hemoglobin was low in September 2007, but was normal in October and November 2008. Dr. K.G. indicated that the Veteran was no longer anemic. His EGD in December 2008 showed generalized gastritis, and it was possible that his weight loss and anemia were at least in part due to gastritis. In March 2010 VA treatment records, the Veteran denied having anemia. During his February 2011 hearing before the Board, the Veteran stated that he could not walk very long without suffering from heartburn. He indicated that he was told in 2007 that he was anemic. His wife indicated that he would be bedridden for 10 days or more. He would have occasional vomiting as well. The Veteran's wife stated in a November 2012 statement that in July of that year he could not keep down much for two weeks. He lost 11 pounds that month and needed extra potassium. The Veteran underwent a VA examination in November 2012. The Veteran was diagnosed as having duodenal ulcer. The Veteran indicated that he had a flare-up last year and lost 11 pounds. His treatment plan included taking continuous medication. Signs and symptoms include recurring episodes of symptoms that are not severe, 4 or more times a year lasting less than one day; recurring episodes of severe symptoms 4 or more times a year lasting less than one day; abdominal pain occurring periodically; nausea, which was transient, occurring 4 or more times a year; and vomiting, which was transient, occurring 4 or more times a year, and lasting less than one day. The Veteran had weight loos with a baseline weight of 184 and a current weight of 173. The Veteran did not have incapacitating episodes. Stomach pain would impact his ability to work. The examiner indicated that there was no evidence of anemia, and that he lost 11 pounds over the past year. During a June 2014 VA aid and attendance examination, it was noted that the Veteran had no recent problems, had not been hospitalized, and had no bleeding from the upper and lower GI tract. In January 2017 VA treatment records, the Veteran indicated that he had nausea and vomiting, and his weight would go up and down. In December 2017, it was noted that there were no changes to his history of ulcers. In November 2018, it was noted that the Veteran had ulcers and occasional stomach pain. The Veteran underwent a VA examination in September 2018. The Veteran was diagnosed with a stomach or duodenal condition of peptic ulcer disease. The Veteran's treatment plan included taking continuous medication. He reported having flare ups twice a month and sometimes vomiting. He reported that if he was not on medication, his problems would be daily. Signs and symptoms include recurring episodes of symptoms that are not severe, 4 or more times a year, lasting 1 to 9 days, abdominal pain occurring at least monthly, periodic, and only partially relieved by standard ulcer therapy; nausea, which was recurrent, occurring 4 or more times a year and lasting 1 to 9 days; and vomiting, which was recurrent, occurring 4 or more times a year and lasting 1 to 9 days. The Veteran would have incapacitating episodes twice a month, with stomach pain, heartburn, and reflux sometimes with vomiting. They would occur 4 or more times a year lasting 1 to 9 days. The Veteran stated that if he ran out of medicine, he would be unable to work. He further indicated that it was "aggravating to live with." The VA examiner indicated that the Veteran did not currently have anemia and while there is a possibility that gastritis caused anemia in 2008 but he does not have it now. Also, the Veteran was overweight in 2006 with a BMI of 30, but gradually over about a year's time he lost weight and his BMI was 26.89. His BMI is now maintained at 22.88, which was in the normal range. The Veteran had prostate cancer in 2008, and had a history of alcoholism and marijuana abuse. The examiner opined that the Veteran's anemia and weight loss was more likely due to prostate cancer and possibly due to alcoholism. In August 2020 VA treatment records, it was noted that the Veteran had no melena or hematochezia, but had diarrhea and dysphagia. In a September 2020 opinion, a VA examiner stated that it was less likely than not that the Veteran's anemia and weight loss shown during the appeal period was a manifestation of the Veteran's service-connected peptic ulcer disease. The examiner reviewed the record and indicated that there was no diagnosis of anemia present since January 2007, during the period on appeal. The Veteran was diagnosed with GERD with EGD in November 2008 showing a moderate, generalized, nonspecific gastritis, but repeat EGD in May 2017 was normal. The Veteran had COPD of which he was on home oxygen, and COPD can cause weight loss due to increased respiratory effort. In an additional opinion in March 2021, the VA examiner addressed the letter from August 2009 from Dr. K.G. and indicated that while there was gastritis in December 2008, the Veteran did not have anemia during the period on appeal, according to CBC results, which the examiner reviewed. The Veteran had a normal EGD in May 2017, and there was no evidence of gastritis. His weight loss is therefore most likely due to his oxygen dependent COPD. After a review of the evidence, the Board finds that a rating in excess of 20 percent for peptic ulcer disease under Diagnostic Code 7305 is not warranted. Here, the medical evidence reflects that the Veteran experiences no more than moderate symptoms. While the November 2012 VA examiner found that the Veteran had recurring episodes of severe symptoms 4 or more times a year, the examiner indicated they lasted less than one day, which would not rise to the level of moderately severe. In addition, there is no evidence of recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The majority of the evidence reflects that the Veteran did not suffer from incapacitating episodes. Although the September 2018 VA examiner indicated that the Veteran would have incapacitating episodes twice a month, they would only last 1 to 9 days. Regarding weight loss, the Board acknowledges that the November 2012 VA examiner noted weight loss, and that records have shown that the Veteran had weight loss during the period on appeal. Regarding anemia, the Board notes the August 2009 letter from Dr. K.G., who stated that it was possible that his weight loss and anemia were at least in part due to gastritis. However, this statement is outweighed by the September 2020 and March 2021 opinions that the Veteran did not have anemia, which are based on a review of the CBC results from the period on appeal since January 2007. The examiner reviewed the Veteran's claims file, and also reviewed the September 2007 CBC results and found that there was no evidence of anemia. Dr. K.G. did not review the claims file and only based the statement on a low blood count hemoglobin in September 2007. As such, the Board finds that the evidence does not reflect that the Veteran has had anemia during the period on appeal. The requirement under Diagnostic Code 7305 of impairment of health manifested by anemia and weight loss means that both factors are required. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Even if the Veteran has had some weight loss, he is not shown to have had any anemia at any point during the appeal period. Accordingly, the 20 percent rating is the appropriate rating, and his peptic ulcer disease does not warrant a higher rating than 20 percent, and the claim for a rating in excess of 20 percent is denied. The Veteran has stated that his symptoms would be more severe if he did not take his medication. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that "[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication . . . the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication." Diagnostic Code 7305 does consider use of medication as part of the rating criteria; therefore, Jones is inapplicable to that Diagnostic Code, and the effect of his use of medications need not be discussed further. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). The Board has considered further whether the Veteran is entitled to a higher rating under any other diagnostic code for his gastrointestinal disability. 38 C.F.R. § 4.114. However, the Veteran's service-connected disability is diagnosed as peptic, or duodenal, ulcer, which is specifically contemplated by the Schedule. In Copeland v. McDonald, 27 Vet. App. 333, 337 (2015), the Court "reiterate[d] that when a condition is specifically listed in the Schedule, it may not be rated by analogy." See also Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is "unlisted"). In this regard, the Board finds that the Veteran's service-connected peptic ulcer disease is appropriately rated under Diagnostic Code 7305 for the appeal period. Residuals of Right Thumb Fracture, with Degenerative Changes The Veteran's residuals of right thumb fracture with degenerative changes have been rated at 10 percent under Diagnostic Code 5299-5228. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury, in which both the functions affected, and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code 5228, a 10 percent rating is warranted for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. There is no differentiation between the ratings assigned for the major (dominant) and minor (nondominant) hands under Diagnostic Code 5228. VA amended the criteria for rating musculoskeletal system and muscle disabilities effective from February 7, 2021. However, Diagnostic Code 5228 was unchanged by the new regulations. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The Veteran underwent a VA examination in February 2008. He complained of a lot of pain, and usually did not have flare-ups. He was issued a brace, but it did not really help. He had trouble picking up things like concrete blocks or other heavy objects and had trouble gripping. He could not drive or pick things up with his right hand. Repetitive use did not have any effect on his symptoms. There was no redness or swelling. There was tenderness to palpation at the base of the right thumb. He could extend the right thumb to 40 degrees and when he tried to flex the right thumb, he could only come within 3 cm of the base of the fifth finger and with repetition only within 4 cm of the base of the fifth finger. The joint was painful on motion. At his February 2011 hearing before the Board, the Veteran stated that he could not grip, and grip to hold something or pick it up with his right hand. He stated that without medication his pain would be a 7 out of 10. He could not use a weed eater and mow with a push mower. It would affect his job, as he could not load dynamite. He stated he left his job because of his hand. He would have to take his finger to his thumb. He stated a brace would help sometimes. In a November 2012 statement, the Veteran's wife stated that his right hand affected his job working in pipeline construction and he took a layoff and wound up with a lower paying job. Eventually due to several issues including his right hand, he had to stop working. The Veteran underwent a VA examination in November 2012. The examiner noted that the Veteran was able to work in general labor from 1972 to 2000 despite his right finger pain, and there was no mention of a right thumb condition or treatment for 2 years. The Veteran did not report that flare-ups impacted the function of the hand. There was limitation of motion or evidence of painful motion of the right thumb. There was no gap between the thumb pad and fingers. There was no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips. There was no limitation of extension or evidence of painful motion for the index finger or long finger. The Veteran was able to perform repetitive use testing with 3 repetitions, and there was no additional limitation of motion. There was no gap between the thumb pad and the fingers post-test, no gap between any fingertips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the fingertips, and no limitation of extension of the index finger and long finger post-test. The Veteran had functional loss or functional impairment, factors were less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner noted poor effort when testing. There was no tenderness or pain to palpation in the right hand. There was active movement against some resistance in the right-hand grip. The Veteran did not have ankylosis. The Veteran's condition impacted his ability to work in that the Veteran claimed his right thumb limits lifting. The Veteran was able to do all activities of daily living. Subsequent VA treatment records note pain in the right hand. The Veteran then underwent a VA examination in September 2018. He complained of closing his right thumb to first finger, 12 cm between second finger. He had mild difficulty picking up a piece of paper but could hold a can of soda with thumb wrapped around the can and resting on the third and fourth finger. He could not pick up a 10-pound weight and pinch test for strength was positive. The Veteran did not report flare-ups. He reported functional impairment of difficulty carrying, picking up items, pushing and pulling with the right thumb, and pain with use which caused him to drop items. Range of motion testing was abnormal, showing the right thumb having a maximum extension in the metacarpophalangeal (MCP) joint to 0 degrees and maximum flexion to 25 degrees and a maximum extension in the interphalangeal (IP) joint to 0 degrees and maximum flexion to 55 degrees. There was no gap between the thumb pad and fingers and no gap between the finger and the proximal transverse crease of the hand on maximum finger flexion. Range of motion contributed to a functional loss, the Veteran verbalized pain at 9/10 with passive range of motion of the thumb and winced. Pain was exhibited on finger flexion. There was no tenderness or pain to palpation of the joint. The Veteran was able to perform repetitive use testing with 3 repetitions, and there was no additional limitation of motion. The examiner could not say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time and flare-ups. Estimating loss of range of motion was not possible because there was no conceptual or empirical basis without directly observing function. Additional factors contributing to disability were less movement than normal and weakened movement. Muscle strength testing showed active movement against gravity in the right hand. There was no muscle atrophy and no ankylosis. There were degenerative changes in the second and third MCP joints which were incidental to the right thumb. The Veteran's right thumb impacted his ability to work in that difficulty carrying, picking up items, pushing and pulling with the right thumb, and pain with use which caused him to drop items. There was objective evidence of pain on passive range of motion testing, and when the joint is used in non-weight bearing. The September 2018 VA examiner also indicated that range of motion repetitive active was 35 degrees in the MCP and 65 degrees in the IP, while flexion, extension was 0. Passive motion with pain and wincing, MCP range of flexion was 22, and IP was 55. There was pain on palpation without abnormalities in the right thumb. In weight-bearing, the Veteran had difficulty picking up a can of soda and picking up a piece of paper. He could not pick up a 10-pound weight with the first finger and thumb. Pinch test was positive for weakness 4/5 on passively holding the two fingers together. In April 2019, the examiner provided an addendum opinion where it was stated that there was a gap of 0.5 cm between the pad of the thumb and fingers on initial range of motion. Also, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time and flare-ups. The examiner stated that following further review of the records and considering the Veteran's complaints and objective exam findings, including observed repetitive use with no loss of function and no reported flare-ups, given his clinical knowledge and medical expertise, there remained no rational basis to make a notation regarding any additional losses of function or motion on repetitive use or flare-ups. The Veteran underwent a VA examination in December 2020. He complained of right thumb pain and decreased strength. The Veteran reported flare-ups of increased pain during cold weather. The Veteran also reported functional impairment, in that he could not chop wood like he used to from lack of strength and could not lift anything heavy with his right hand. Range of motion testing was abnormal, showing the right thumb having a maximum extension in the MCP joint to 0 degrees and maximum flexion to 30 degrees and a maximum extension in the IP joint to 0 degrees and maximum flexion to 20 degrees. There was no gap between the thumb pad and fingers and no gap between the finger and the proximal transverse crease of the hand on maximum finger flexion. Range of motion contributed to a functional loss, as the Veteran had decreased strength due to loss of range of motion. Pain was exhibited on finger flexion, opposition with thumb, and finger extension. There was no tenderness or pain to palpation of the joint. The Veteran was able to perform repetitive use testing with 3 repetitions, and there was no additional limitation of motion. Pain and weakness significantly limited functional ability with repeated use over time. Pain significantly limited functional ability with flare-ups. Estimated thumb range of motion with repeated used over time and flare-ups was maximum extension in the MCP joint to 0 degrees and maximum flexion to 30 degrees and a maximum extension in the IP joint to 0 degrees and maximum flexion to 20 degrees. There was no gap between the thumb pad and fingers and no gap between the finger and the proximal transverse crease of the hand on maximum finger flexion. Additional factors contributing to disability were less movement than normal. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. The Veteran's right thumb did not impact his ability to work. The right hand exhibited pain on range of motion. There was objective evidence of pain when used in non-weight bearing, and passive range of motion was the same as active range of motion. In this case, the Board finds the preponderance of evidence is against an increased rating in excess of 10 percent for residuals of right thumb fracture with degenerative changes. The evidence does not show that there is a gap of more than two inches (5.1 centimeters) between the thumb pad and fingers with the thumb attempting to oppose the fingers or any degree of ankylosis of the thumb even after consideration of additional functional impairment due to pain, weakened movement, excess fatigability, incoordination, and flare-ups. All VA examiners reported there was no gap between the thumb pad and fingers with the thumb attempting to oppose the fingers, except for the September 2018 VA examiner who found that there was only a gap of 0.5 cm between the pad of the thumb and fingers on initial range of motion, and the February 2008 VA examiner who indicated that when the Veteran tried to flex the right thumb he could only come within 3 cm of the base of the fifth finger and with repetition only within 4 cm of the base of the fifth finger. These findings, however, are less than the 5.1 cm gap required for a 20 percent rating under Diagnostic Code 5228. While the September 2018 VA examiner failed to adequately assess functional impairment during repetitive use and flare-ups, the December 2020 VA examiner found that pain and weakness significantly limited functional ability with repeated use over time and that pain significantly limited functional ability with flare-ups. Even when considering these additional factors the examiner still estimated right thumb range of motion with repeated used over time and flare-ups was maximum extension in the MCP joint to 0 degrees and maximum flexion to 30 degrees and a maximum extension in the IP joint to 0 degrees and maximum flexion to 20 degrees, which is consistent with the other findings in the record and also found no gap between the thumb pad and fingers and no gap between the finger and the proximal transverse crease of the hand on maximum finger flexion. The December 2020 examiner also reported there was no degree of ankylosis of the thumb, which was also consistent with all the previous examination reports. As the December 2020 examination report is generally consistent with the previous examination reports but for their inadequate assessment of flare-ups and fails to more nearly approximate limitation of motion of the right thumb to the extent that there is a gap of more than two inches (5.1 centimeters) between the thumb pad and fingers with the thumb attempting to oppose the fingers or any degree of ankylosis or its functional equivalent, the Board finds the preponderance of evidence is against a finding that a rating in excess of 10 percent is warranted under Diagnostic Code 5228. The Veteran's painful limitation of motion and additional functional impairment meets the impairment contemplated by the current schedular disability rating and does not more nearly approximate functional impairment commensurate with a 20 percent rating. Even when considering the Veteran's pain and functional impairment following repetitive use of the hand, the evidence of record does not establish that he has the requisite limitation of motion of the thumb or ankylosis of thumb to warrant a higher rating than what is already assigned. Additionally, although the record reflects that the Veteran has degenerative arthritis, a rating in excess of 10 percent is not warranted under Diagnostic Code 5010 for arthritis because there is not X-ray evidence of arthritis in two minor joint groups, as required for a 20 percent rating; the thumb constitutes only one minor joint group. 38 C.F.R. § 4.45. Additionally, ratings based on X-ray evidence of arthritis are only available where there is an absence of limitation of motion. Higher or separate ratings are not warranted under Diagnostic Codes 5220 through 5223, as the evidence in this case does not show that the Veteran has ankylosis of any digits and does not indicate impairment analogous to ankylosis, or amputation of the fingers and/or entire hand. Even though the Veteran does have limitation of motion, there is still evidence of motion and functional ability. A higher rating is also available for the thumb under Diagnostic Code 5224 for unfavorable ankylosis of the thumb as the evidence does not indicate that the right thumb is ankylosed. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim seeking a rating in excess of 10 percent for residuals of right thumb fracture with degenerative changes is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to service connection for sleep apnea The March 2020 remand directed that the Veteran be contacted to identify the location of the sleep study performed in Missouri around 2014 and to ask him to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the facility where the study was performed. The directives stated that the RO was to make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. The Veteran was sent a letter in June 2020, asking him to submit a VA Form 21-4142 so that VA could obtain treatment records on his behalf. The letter also stated that the Veteran had indicated on his application that he "received treatment from 2014 Missouri Sleep Study." Although it appears that the Veteran did not respond, the RO made no further attempts to obtain the information needed to obtain the sleep study and did not indicate that further attempts would be futile. Additionally, the June 2020 letter did not request the information specifically noted in the March 2020 remand directives. Therefore, another attempt must be made to obtain the sleep study. Entitlement to service connection for hypertension The March 2020 remand directed that the Veteran be afforded a VA examination regarding the nature and etiology of his hypertension. The Veteran underwent a VA examination in December 2020. The examiner opined that the Veteran's hypertension was less likely than not related to service. The rationale provided was that while the Veteran had exposure to Agent Orange, his medical records were absent for a diagnosis of high blood pressure. Despite the readings in service of 134/68 in May 1973 and 110/78 in September 1973, there were no other readings that indicated hypertension. In a February 2021 addendum the examiner stated that the readings in service were normal range and not indicative of hypertension and there were no other records that indicated the Veteran had hypertension. In another addendum opinion in April 2021, after being advised that the record did contain a diagnosis of hypertension, the examiner opined that hypertension was at least as likely as not due to service because the Veteran had exposure to Agent Orange and his 2011 medical records reported that he needed blood pressure medications for hypertension since December 2000. In a subsequent addendum opinion in April 2021, after being advised that Agent Orange exposure has not been conceded, the examiner opined that it was less likely than not related to service, because there was no evidence to link current hypertension to service. The rationale provided in this case is inadequate. The examiner concluded in December 2020 that the Veteran did not have a diagnosis of hypertension and that he had exposure to herbicide agents; however, this conclusion was based on an inaccurate factual history. Similarly, the February 2021 opinion is based on an inaccurate factual history. The first April 2021 opinion was based on a conclusion that he had exposure to Agent Orange, but exposure has not been conceded. The last April 2021 opinion is conclusory and lacks a reasoned rationale. A medical examination report or opinion must "contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Remand is required for an adequate medical opinion. Entitlement to an increased rating for migraine headaches As indicated, the Veteran was granted service connection for migraine headaches in an October 2018 DRO decision and a 30 percent rating was assigned effective July 23, 2015. In January 2019, the Veteran filed a notice of disagreement with the assigned rating. Although the Veteran was awarded an increased 50 percent rating in a December 2019 DRO decision, the Veteran, through his former representative, indicated in January 2020 that he wished to have a statement of the case (SOC) issued, which indicates he is not satisfied with the grant of a 50 percent rating. To date, a SOC has not been issued as it relates to this issue. The Board is required to remand the claim for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal of the issue after the SOC is issued. Entitlement to TDIU prior to January 7, 2013 As a grant of service connection for sleep apnea and hypertension on remand may affect the Veteran's eligibility for a TDIU prior to January 7, 2013, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the claim for TDIU prior to January 7, 2013 must be remanded for further adjudication. Entitlement to SMC Because development of the record and a decision on the issues of service connection for sleep apnea and hypertension could significantly impact a decision on the issue of entitlement to SMC due to aid and attendance, the issues are inextricably intertwined. As such, a remand of the claim for SMC due to aid and attendance is also required. The matters are REMANDED for the following actions: 1. Ask the Veteran to specifically identify the location of the sleep study the Veteran underwent while in Missouri around the year 2014. Ask him to complete a VA Form 21-4142 for the facility where the sleep study was completed. Make two requests for the records unless it is clear after the first request that a second request would be futile. All attempts, successful or unsuccessful, must be documented in the claims file. 2. Obtain the Veteran's VA treatment records for the period from May 2021 to the present. 3. Obtain an addendum opinion from an appropriate medical clinician regarding the Veteran's hypertension. The electronic claims file, including a copy of this remand, must be provided to the clinician in conjunction with the requested opinion. A new VA examination of the Veteran need not be ordered, unless the medical professional providing the opinion determines that one is necessary. The examiner must opine whether the Veteran's hypertension at least as likely as not (50 percent or greater probability) had its onset during or is otherwise related to his active service. In providing this opinion the examiner must discuss the service treatment records, which indicate that the Veteran had elevated blood pressure readings of 134/68 in May 1973 and a blood pressure reading of 110/78 at separation. A complete rationale for all opinions must be provided. The clinician is reminded that a medical examination report or opinion must also "contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Issue an SOC as to the issue of entitlement to a rating in excess of 50 percent for migraine headaches. The SOC must be provided to the Veteran advising the Veteran of his appeal rights. If an appeal is perfected in this matter, the case should be returned to the Board, if otherwise in order. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.