Citation Nr: 21075815 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-14 698 DATE: December 21, 2021 ORDER Service connection for the Veteran's cause of death is denied. Service connection for right hip disability (variously diagnosed as degenerative disc disease and avascular necrosis), for accrued benefits purposes, is denied. Service connection for psychiatric disorder (to include depression, anxiety, mood disorder, and adjustment disorder) secondary to intervertebral disc syndrome (IVDS), for accrued benefits purposes, is denied. An increased rating in excess of 40 percent for the service-connected IVDS, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran's death certificate reflects that the immediate cause of death was acute cardiac dysrhythmia, due to, or as a consequence of, acute thrombosis of right coronary artery, due to, or as a consequence of, atherosclerotic heart disease. 2. A disability of service origin did not cause or contribute to the Veteran's death. 3. The weight of the evidence is against a finding that the claimed right hip disability, began during active service or is otherwise related to an in-service injury or disease. 4. The claims file is void of any competent evidence that the Veteran's psychiatric disorder was aggravated by his service-connected IVDS, and it is not shown to be otherwise related to any in-service injury or disease. 5. For the entire appeal period, the Veteran's IVDS was manifested, at most, by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for service connection for a right hip disability, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1131, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.1010. 3. The criteria for service connection for a psychiatric disorder secondary to IVDS, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1131, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.1010. 4. For the entire appeal period, the criteria for a rating in excess of 40 percent for the service-connected IVDS are not met. 38 U.S.C. § 1155; 5121A; 38 C.F.R. §§ 3.1010, 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to September 1988. In October 2010, the Veteran filed an increased rating claim for his service-connected IVDS, and service connection claims for a right hip disability and depression. The Veteran died in November 2010, while his claims were pending at the Agency of Original Jurisdiction (AOJ or RO). The appellant is the Veteran's surviving spouse and in she was substituted to complete the claims that were pending at the time of the Veteran's death. In addition, the appellant filed a VA Form 21-534 Application for Dependency and Indemnity Compensation claiming service connection for the cause of the Veteran's death This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for depression secondary to IVDS, service connection for degenerative joint disease of the right hop, service connection for cause of death, and an increased disability rating in excess of 40 percent for service connected IVDS. The appellant's notice of disagreement was received in September 2013. The RO issued a statement of the case in February 2016. The appellant's VA Form 9, substantive appeal to the Board, was received in April 2016. In March 2019 the Board remanded the case to the RO for further development and adjudicative action. A. Dependency and Indemnity Compensation (DIC) Entitlement to Service Connection for the Cause of the Veteran's Death The appellant seeks service connection for the Veteran's cause of death. The appellant asserts she was told that the Veteran's blood was not circulating correctly because of his back and hip, which is what led to his death. See February 2012 Statement in Support of the Claim. She further asserts that the autopsy report indicated that a contributing factor in the Veteran's death was a blood clot that traveled from his back to his heart therefore his service-connected IVDS was a contributing factor in the forming of this blood clot. See September 2013 Notice of Disagreement. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. 38 C.F.R. § 3.312(c)(2). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The Veteran's death certificate reflects that the immediate cause of death was complications of acute cardiac dysrhythmia with contributing causes of acute thrombosis of right coronary artery, and atherosclerotic heart disease. During the Veteran's lifetime, the Veteran's IVDS, and limitation of motion of the ankle, were service connected. There is no medical evidence to support, a link between the Veteran's service-connected IVDS and ankle to the conditions listed on his death certificate. The appellant was sent a letter in January 2012 requesting any additional evidence to support a link between the Veteran's service-connected disabilities and his cause of death. In the April 2016 VA Form 9, the appellant asserted she was unable to get a letter from the Veteran's physician regarding the blood clot as the physician had retired. The appellant did not submit the any autopsy report. Although the Veteran's acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease were not service connected during the Veteran's lifetime, service connection for the cause of his death may be granted if the evidence demonstrates that a disability of service origin was either the principal or contributory cause of the Veteran's death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312(a). Thus, the question before the Board is whether the Veteran's acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease had their onset in, or are otherwise the result of an injury or disease incurred in service. Service treatment records show no treatment related to acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease. In this regard, the evidence of record does not document any diagnosis of acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease during military service or within one year therefrom. Notably, the Veteran noted heart disease in his family at the time of entry into service. Furthermore, the separation examination noted a normal heart, the Veteran did not complain of any heart problems at the time of his discharge. In January 2012, requesting any additional documentation to support her claim to include evidence showing a link between the Veteran's service-connected disabilities and his cause of death. In the April 2016 VA Form 9, the appellant asserted she was unable to get a letter from the Veteran's physician regarding the blood clot as the physician had retired. The VA treatment records from Pensacola did not show any medical evidence and no medical opinion to support the appellant's claim. No additional evidence was received by the appellant, including any autopsy report. In the September 2020 VA medical opinion regarding the appellant's cause of death claim, the examiner states: The cause of death is recorded on the death certificate as: acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease. Service treatment records are negative for any treatment, diagnosis, complaint, or finding of cardiac dysrhythmia, acute thrombosis of right coronary artery, or atherosclerotic heart disease while the Veteran was in service. The Veteran's service-connected disabilities during his lifetime included: fracture of S-3 (Intervertebral disc syndrome) and residuals of right ankle sprain. There is no evidence that the Veteran's service-connected conditions hastened or contributed to his death. There is no evidence that the Veteran's cardiac dysrhythmia, acute thrombosis of right coronary artery, or atherosclerotic heart disease manifested to a compensable degree of 10 percent within one year after the Veteran's discharge from service. Based on the foregoing, the preponderance of evidence is against service connection for the cause of the Veteran's death. The Veteran is not shown to have any in-service injury, event or disease during military service on which to predicate a finding of acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease either manifesting during or otherwise being related to military service. As such, the in-service and nexus elements for service connection for acute cardiac dysrhythmia, acute thrombosis of right coronary artery, and atherosclerotic heart disease that existed at the time of the Veteran's death are not satisfied and the claim for service connection for cause of the Veteran's death must be denied at this time. 38 C.F.R. §§ 3.303, 3.310. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. However, as the preponderance of the evidence is against the appellant's claim, that doctrine does not apply, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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). Alternatively, service connection may be granted based on continuity of symptomatology. 38 C.F.R. § 3.303(b). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Service Connection on the basis of substitution FOR ACCRUED BENEFITS PURPOSES 1. Entitlement to service connection for a right hip disability. In his September 2010 Statement in Support of the Claim, received on October 1, 2010, the Veteran asserted he injured his hip while in service and continued to suffer from the disability since leaving the service. No specific details regarding this alleged injury were provided. The Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis regarding a right hip injury. In November 1983 he reports a car incident in which he fell off a Yama in Korea injuring his low back. Rather, a September 1986 service treatment record notes "strength of hips in tact." Treatment records show the Veteran's first report of right hip pain began in May 2010. In July 2010 the Veteran reported he had a fall while in the military in 1982, where he describes jamming both hips and his lumbar spine. Based on imaging the Veteran was diagnosed with L5-S1 degenerative disc disease (DDD) and bilateral avascular necrosis (worse in the right hip) in July 2010. In a September 2020 VA medical opinion, the examiner concluded the claimed right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness and provided the following rationale: Avascular necrosis of bilateral hip (right more than left) [Icd10 code: M87.859]. Moderate functional limitations as per Ortho evaluation dated 26 Jul 2020. Condition not caused by service or [service-connected] conditions. Condition not present on radiography from 1998. Condition not manifested to a compensable degree within a year of separation from service. As per medical literature: "Osteonecrosis, (ie, avascular necrosis, aseptic necrosis) describes a pathologic process involving vascular compromise or defective bone repair that ultimately leads to death of the affected portion of the bone. The process is most often progressive and, when affecting the bones of the hip, causes joint destruction within three to five years if untreated. A variety of traumatic and nontraumatic factors are associated with the development of osteonecrosis; glucocorticoid use and excessive alcohol intake are associated with over 80 percent of nontraumatic cases. The most common presenting symptom of osteonecrosis is pain. In cases affecting the femoral head, groin pain is most common, followed by thigh and buttock pain. Pain generally occurs with weight-bearing, but pain at rest or at night are common. Early diagnosis of osteonecrosis may provide the opportunity to prevent joint destruction and the need for joint replacement. However, most patients present late in the course of the disease. As noted above, the evidence of record does not document any diagnosis of DDD or avascular necrosis of the right hip during military service or within one year therefrom. Service connection for that condition on a presumptive basis is therefore not applicable. See 38 C.F.R. § 3.307, 3.309. Furthermore, the separation examination noted a normal right hip joint and the Veteran did not complain of any right hip problems at the time of his discharge; rather, the evidence does not demonstrate any complaints for many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Service connection on the basis of continuity of symptomatology in this case is therefore also denied. 38 C.F.R. § 3.303(b). Finally, although the Board acknowledges the Veteran's statements that his right hip disorder is related to his fall in the military, the Board reflects that the Veteran is not competent to render such an opinion as he does not have the requisite medical knowledge or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Consequently, the sole competent evidence with regards to nexus to military service is the September 2020 VA examiner's opinion. The examiner's opinion is extremely probative and is based on a thorough review of the record. His opinion was thoroughly explained with an adequate rationale for his findings and conclusions. The opinion is unrefuted by any other evidence of record. Accordingly, as the evidence of record does not demonstrate that the Veteran's right hip disability is the result of military service, to include the fall in November 1983, the Board must deny service connection for a right hip disability based on the evidence of record. 38 C.F.R. § 3.303. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for psychiatric disorder secondary to intervertebral disc syndrome (IVDS). The appellant asserts that service connection for depression should be granted as secondary to the Veteran's IVDS as he was depressed because of the pain that he was in all of the time which limited him from being able to perform daily activities. See April 2016 VA Form 9. Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a secondary service connection claim, the Veteran must show: (1) a present disability (for which service connection is sought); (2) a service-connected disability; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. The Veteran's service treatment records show a car accident in November 1983 which resulted in decreased range of motion in his low back. The service treatment records show no treatment or diagnosis related to depression or any other psychiatric disorder. Furthermore, the mental status evaluation upon separation from service noted no mental health issues. Rather, the Veteran was noted to have normal behavior, to be fully alert and oriented, with normal thought content, clear thinking, good memory and unremarkable mood or affect. In an April 1997 private psychological evaluation, the Veteran was diagnosed with depression. At that time, the Veteran reported depression after a 1983 car accident in which he rolled out of a car and fractured his sacrum. He further reported another car accident in 1994 which resulted in a head injury for which he complained of loss of consciousness and diminished memory. Private treatment records from 2009 through 2010 indicate the Veteran was taking antidepressants. In October 2009, the Veteran's doctor noted grief reaction with depression. The Veteran reported depression and mood swings. In a November 2009 follow up visit regarding depressed mood, the Veteran reported he was doing well and had no current complaints. The Veteran denied anxiety, feeling depressed, fatigue, and problems sleeping or with focus and concentration. Notably, the Veteran further reported not being compliant with taking medications as prescribed as they made him feel more tired, sluggish and sleepy; he was able to take some time off from work for medical leave and vacation and feels better; he also underwent a psychological evaluation at his job, and they felt his stress was related to his job and the recent death in his family. In a September 2020 VA medical opinion, the examiner notes the Veteran's psychological disorder to include the following diagnoses: depression, depression with grief reaction, adjustment reaction with prolonged depressive reaction, anxiety disorder, and mood disorder. For all diagnoses the examiner found it was less likely than not that the disorder had an onset in service or was otherwise related to active service. The VA examiner further found it was less likely than not that the Veteran's mental disorder was proximately due to or aggravated beyond its natural progression of the service-connected disability [IVDS]. The two findings were supported by the following rationale: Per available records, the Veteran's mental disorder started after the death of his father in 2009 and was also partly related to stress at work in 2009-2010 as well as his wife's medical problems. In the instant case, more probative weight is accorded to the September 2020 VA examiner's opinions outlined above, which indicate that the Veteran's depression is less likely than not etiologically related to active service or any service-connected disability. In particular, the opinion was completed by a trained medical professional who thoroughly reviewed the Veteran's entire record and prior Board remand. Additionally, the nature and etiology of such disorder involves a medical subject concerning an internal psychological process extending beyond an immediately observable cause-and-effect relationship. Therefore, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). There is no medical opinion to the contrary. In this regard, although the appellant is competent to report symptoms she observed in the Veteran; and, sincerely believes that his depression is the result of his back injury during service, her opinion as to causation is not competent. The appellant has not been shown to possess the requisite training or credentials necessary to render a competent opinion as to causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue in this case is medically complex and is not capable of lay observation. Moreover, the record contains inconsistent statements from the Veteran as to when he began to feel depressed. The Veteran did not indicate any depression during service or at the time of discharge; but, subsequently reported in 1997 that he started feeling depressed after the 1983 car accident. Similarly, other treatment records reviewed by the VA examiner reveal that the Veteran's mental disorder started after the death of his father in 2009. Accordingly, the opinion of the VA examiner outweighs the Veteran's statements as to when he began to feel depressed. The competent medical evidence in this case outweighs the appellant's lay reports. Accordingly, the preponderance of the evidence is against this claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. Increased Ratings as a substitute claimant FOR ACCRUED BENEFITS PURPOSES Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Entitlement to a rating in excess of 40 percent for service-connected IVDS. The appellant asserts a rating in excess of 40 percent is warranted for the Veteran's service-connected IVDS. For the entire appeal period, the Veteran's IVDS was evaluated as 40 percent disabling pursuant to Diagnostic Code 5243 based on incapacitating episodes. 38 C.F.R. § 4.71a. Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38C.F.R. §4.71a, Diagnostic Code 5243. In addition, IVDS, under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38C.F.R. §4.71a, Diagnostic Code 5243. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38C.F.R. §4.71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1. Diagnostic Code 5243, which rates IVDS, specifically instructs to evaluate IVDS under both Diagnostic Code 5243 and the General Rating Formula and apply whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. 38 U.S.C. § 5110 (g). Here, the amendments to the rating schedule do not have any retroactive application. In this case, there is no evidence of disc herniation or irritation of the adjacent nerve root. However, given that the current appeal was pending as of February 7, 2021, a rating under Diagnostic Code 5243 for IVDS may still be available for the in the absence of disc herniation or irritation of the adjacent nerve root even after the effective date of the amendment if the old rating criteria yield a more favorable result than the new criteria. Accordingly, given that application of the new criteria eliminates entitlement to a rating under Diagnostic Code 5243, application of the new criteria necessarily eliminates consideration for the Veteran's low back disability under Diagnostic Code 5243. Accordingly, the old criteria are more favorable and will be applied for the full period on appeal. In September 2010 the Veteran submitted a claim for an increased rating in excess of 40 percent for his service connected IVDS. The Veteran passed away before a current examination could be performed in order to evaluate the current severity of the Veteran's condition. There is no medical evidence in the record or provided by the appellant to support an increased rating in this case. As such, entitlement to an increased rating in excess of 40 percent for the Veteran's service-connected IVDS is not warranted. In addition, there is no evidence of unfavorable ankylosis of the spine. Accordingly, a higher rating under the General Rating Formula for Disease and Injuries of the Spine an alternative method of evaluating IVDS is not warranted. In reaching such conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine does not apply, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, Associate 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.