Citation Nr: 21076442 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-08 460 DATE: December 23, 2021 ORDER 1. Entitlement to service connection for ulcers is denied. 2. Entitlement to service connection for traumatic brain injury (TBI) is denied. 3. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD) is denied. 4. Entitlement to increased rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine prior to June 5, 2017, and in excess of 40 percent thereafter is denied. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had ulcers at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a TBI at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder was incurred in or otherwise related to service. Schizophrenia did not have its onset in service, was not manifested within one year of service discharge, and are not otherwise related to service. The preponderance of the evidence of record is against finding that the Veteran has had a PTSD at any time during or approximate to the pendency of the claim. 4. Prior to June 5, 2017, the Veteran's degenerative disc disease of the thoracolumbar spine is not manifested by unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 5. From June 5, 2017, the Veteran's degenerative disc disease of the thoracolumbar spine is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for ulcers have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 4.125. 4. The criteria for an increased rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine prior to June 5, 2017, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1978 to March 1984. In the March 2015 VA Form 9, the Veteran requested a Board hearing. In June 2019, a Board hearing was scheduled, however the Veteran failed to appear. In a June 2019 VA Form 21-0820, the Veteran stated that the hearing scheduling notice was sent to the wrong address, that he was unable to attend the hearing on time because of a funeral, and requested a new hearing. The Board scheduled a new hearing in August 2021, however the Veteran failed to appear for this hearing as well. The Veteran has not supplied good cause or any explanation for his failure to appear for the hearing, therefore the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In a February 2016 statement, the Veteran filed a motion to advance his appeal on the docket (AOD) due to financial hardship and his housing situation. The Veteran has not supplied evidence in support of this claim. Appeals are generally considered in docket number order, but may be advanced on the docket for sufficient cause, which may include advanced age, serious illness, severe financial hardship, or administrative error resulting in a significant delay. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.902(c). The Board finds that sufficient cause has not been shown due to severe financial hardship, and the motion to advance the case on the docket is denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125(a), 4.130. However, the record reflects that the Veteran's psychiatric health has been analyzed under the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV) criteria because it was analyzed prior to the release of the DSM-5. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that VA may presume that a diagnosis made by a mental health care professional was made in accordance with the DSM-IV). Thus, the Board shall consider the Veteran's appeal in light of the DSM-IV. 1. Entitlement to service connection for ulcers. The question for the Board in this case is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for service connection to be established, there needs to be competent evidence of a current disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of an ulcer and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). The evidence supports that the Veteran had a diagnosis of an ulcer as recently as 2000, however, that is 10 years prior to the date of submission of the Veteran's September 2010. After 2000, the record does not support that the Veteran continued to have a diagnosis of ulcers, or that the Veteran experienced related symptoms. In treatment records from that date, the Veteran's ulcers are only noted when discussing the Veteran's medical history, but are not considered an active medical issue requiring treatment. For example, in an October 2010 VA treatment record, it was noted that the Veteran underwent surgery for an ulcer in 2000 because of a perforation. In a December 2011 VA treatment record, when discussing his past medical history, he reported the same surgery for his perforated stomach ulcer. In a September 2013 private treatment record from Memorial Healthcare System, the Veteran once again reported a history of "bleeding ulcers," and noted that he underwent a laparoscopy gastrotomy with repair of his ulcer but did not report active complaints of an ulcer. Again, in a May 2017 VA treatment record the Veteran only reported a history of a peptic ulcer, without making any complaints of ongoing symptoms. Although the Veteran has regularly reported a history of ulcers, numerous records show that the Veteran was evaluated for ulcers and it was determined that the Veteran did not have a diagnosis of ulcers throughout the pendency of the claim or recent to the claim. For example, in a May 2013 Social Security Administration (SSA) record, it was found that the Veteran did not have an active ulcer since the date he first claimed disability for an ulcer on August 23, 2010. In VA treatment records from January 2011, February 2011, and May 2011, it was documented that after examination of the Veteran, no active ulcers were seen. In another May 2011 VA treatment record, the Veteran denied symptoms related to his stomach, or of an ulcer. In an October 2012 SSA record, it was reported that although the Veteran alleged a gastric ulcer, he was not seeking treatment for an ulcer, and was taking over the counter medications for gastroesophageal reflux disease. The record noted that the examination of the Veteran's abdomen was normal. However, in a May 18, 2011 VA treatment record, based upon the Veteran's reported symptoms and history, it was noted that the Veteran had an indication of a peptic ulcer. However, in another VA treatment record from the same day, the Veteran underwent an endoscopy to confirm the diagnosis and the examiner documented that there was no evidence of ulcer disease. The Board finds that the fact that after the Veteran's initial report of symptoms he underwent an endoscopy that found no evidence of an ulcer is probative evidence to establish that the Veteran did not have a diagnosis of an ulcer. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has current disability of ulcers, to include pain that causes functional impairment that affects earning capacity, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). For example, of record are medical records from October 2010 to September 2017, and the preponderance of the evidence during this time period does not support a current disability of ulcers, to include pain that causes functional impairment that affects earning capacity. These records cover a seven-year period, and the lack of documentation of ulcers, to include pain, is evidence against the claims for service connection for ulcers. While the Veteran believes he has a current diagnosis of ulcers, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence, which found no current disability. In sum, without competent evidence of a current disability, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for ulcers and the claim is denied. 2. Entitlement to service connection for TBI. The question for the Board in this case is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or is caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there needs to be competent evidence of a current disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). In a May 2011 private treatment record from Memorial Healthcare System, a CT examination showed no acute intracranial abnormality. In the July 2011 VA examination, it was documented by the examiner that there is no objective evidence of a TBI, and that the Veteran's STRs do not support a traumatic brain injury event. This evidence establishes that the Veteran has not been diagnosed with TBI. In a March 2009 private treatment record from the State of Florida Department of Corrections, the Veteran's head and neurologic examinations were normal. In a September 2013 private treatment record from Memorial Healthcare System, it was documented that the Veteran's head was normocephalic and atraumatic and that his neurologic evaluation was also normal. In VA treatment records from January 2011, May 2011, September 2011, October 2011, December 2011, January 2012, July 2013, August 2013, September 2013, March 2016, April 2016, May 2016, July 2016, August 2016, November 2016, and May 2017 the Veteran was found to have normal findings upon neurologic evaluation. In another May 2017 VA treatment record, it was reported that the Veteran had no mental impairments, such as a TBI. This evidence establishes that the Veteran does not have symptoms of a TBI. In a May 2013 SSA record, it is stated that VA records note a 1984 diagnosis of a TBI while the Veteran was in service, however the disability claim was denied because there was no additional mention of a TBI from then until 2010 when the Veteran sought benefits. However, the record does not support a diagnosis of a TBI during service or by VA in 1984, or at any other time. Additionally, in an August 1984 VA treatment record, the Veteran was found to have normal findings for his head and nervous system. Accordingly, the Board finds that May 2013 SSA record is nonprobative evidence. In an October 2010 VA treatment record, it was noted that the Veteran had an Axis I diagnosis of a TBI. However, this diagnosis is based upon the Veteran's reported history of a TBI, but the evidence does not support any prior diagnosis of a TBI. As the Axis I diagnosis is based upon a reported history that is not supported by the record, the Board finds that it is nonprobative evidence. In numerous records, the Veteran attributes his diagnosis of a TBI to an incident during service in 1979. The Veteran suffered from a fall that resulted in injuries to his back, however the Veteran now contends that he suffered a TBI during this incident. However, in Reports of Medical Examination from April 1982 and January 1984, the Veteran was found to have normal clinical evaluations of his head and neurological systems, and in corresponding Reports of Medical History denied a history of a head injury. This is affirmative evidence that the Veteran did not sustain a head injury in service. The Board affords these records highly probative, as they were made contemporaneously with service, and the Veteran attested to the truth of such statements in the Reports of Medical History. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has current disability of TBI, to include pain that causes functional impairment that affects earning capacity, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). For example, of record are medical records from August 1984 to September 2017, and the preponderance of the evidence during this time period does not support a current disability of TBI, to include pain that causes functional impairment that affects earning capacity. These records cover a 33-year period, and the lack of documentation of TBI, to include pain, is evidence against the claims for service connection for TBI. While the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence, which found no current disability. In sum, without competent evidence of a current disability, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for TBI and the claim is denied. 3. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD. The reasons follow. The Board notes that a distinct legal analysis is required for PTSD, and shall be discussed separately below. The Veteran has been diagnosed with an acquired psychiatric disorder, and thus there is evidence of a current disability. For example, the Veteran has been variably diagnosed with mood disorder, sleep walking disorder, thought disorder, substance use disorder, polysubstance abuse disorder, cocaine use disorder, alcohol use disorder, schizophrenia, seasonal affective disorder, and substance induced mood disorder (SIMD). Service connection may not be granted for substance abuse on the basis of in-service incurrence or aggravation. However, secondary service connection is available for substance abuse if such abuse is found to be secondary to a service-connected disability. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. The Veteran's only service-connected disabilities are degenerative disc disease of the thoracolumbar spine, pseudofolliculitis barbae, and tinnitus. The Veteran does not contend, and the evidence does not suggest, that the Veteran's substance use disorder, polysubstance abuse disorder, cocaine use disorder, alcohol use disorder, or SIMD are proximately due to or aggravated by his service-connected disabilities. Accordingly, the Veteran's substance use disorder, polysubstance abuse disorder, cocaine use disorder, alcohol use disorder, and SIMD are not subject to service connection. As to an in-service disease or injury, the evidence also does not support a finding of a disease or injury in service indicative of an acquired psychiatric disorder. The STRs show that the Veteran was found to have normal psychiatric evaluations in Reports of Medical Examination from December 1976, February 1978, April 1982, and January 1984. In Reports of Medical History from December 1976, February 1978, and April 1982, the Veteran denied a history of depression or excessive worry and denied a history of nervous trouble of any sort, which tends to show that he was not experiencing an acquired psychiatric disorder in service. The Veteran's STRs show he had PULHES evaluations in December 1976, February 1978, December 1978, July 1979, November 1979, February 1980, September 1980, August 1982, June 1983, July 1983, January 1984, and June 1985, which all showed a rating of 1 for "S." The "S" represents a "Psychiatric" evaluation. This factor concerns personality, emotional stability, and psychiatric diseases. An individual having a numerical designation of "1" under any factor is considered to possess a high level of medical fitness for that category. The fact that the Veteran was shown to have a high level of psychiatric medical fitness over the course of numerous evaluations over several years tends to show that he was not experiencing an acquired psychiatric disorder during service. Accordingly, for all these reasons, the Board finds the preponderance of the evidence is against a finding of complaints or symptoms related to an acquired psychiatric disorder during service, and the in-service disease or injury element is not met. The preponderance of the evidence is also against a nexus between an acquired psychiatric disorder and service. For example, in a May 2013 SSA record, Dr. Jonas testified that there is no definitive diagnosis of personality disorder, especially in the absence of substance abuse. As Dr. Jonas attributed the Veteran's acquired psychiatric disorder to his substance use disorders, and did not attribute them to service, this evidence weighs against a finding that his acquired psychiatric disorder is incurred in or otherwise related to service. Although the Veteran generally contends that his acquired psychiatric disorder is due to service, the Veteran's STRs show that the Veteran had normal psychiatric evaluations throughout service, consistently denied a history of psychiatric symptoms such as depression, excessive trouble, or nervous trouble of any sort, and was found to have a high level of psychiatric medical fitness throughout service. Accordingly, the Veteran's contention is outweighed by the record. The Board affords the Veteran's service records more probative value as they were created contemporaneously with service. As to presumptive service connection for a chronic disease, the Board finds that the Veteran did not incur an event, injury, or disease related to his schizophrenia in service and that his schizophrenia did not manifest during service or within one year of separation from service. Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms of schizophrenia have been continuous since separation from service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disorder for approximately 29 years following service discharge until the Veteran was diagnosed with schizophrenia in January 2013. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 29 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). The Veteran has regularly reported a history of PTSD, but further evaluation has repeatedly shown that he does not have a current diagnosis of this disorder. For example, in an October 2010 VA treatment record it was noted that the Veteran had a provisional diagnosis of PTSD based upon the Veteran's reported history. However, in a psychiatric evaluation for the Veteran performed on the same day, no diagnosis of the PTSD was reported. This evidence weighs against a finding that the Veteran had a valid diagnosis of PTSD. In a January 17, 2013 private treatment record from Armor Correctional Health Services, the Veteran reported PTSD. However, in a January 20, 2013 record from Armor Correctional Health Services, while the Veteran was evaluated under DSM-IV, he was not diagnosed with PTSD, and the examiner left a checkbox next to PTSD blank when noting problem areas. In other January 23, 2013 and January 28, 2013 records from the same facility, the Veteran reported that he had a history of PTSD due to his service. In other SSA and VA treatment records, the Veteran continued to variably report PTSD when discussing his medical history. However, despite the Veteran's statements reporting a prior diagnosis of PTSD, the record does not support that the Veteran has been diagnosed with PTSD. The Board affords probative value to the medical diagnoses which found that the Veteran did not have a diagnosis of PTSD, as they were issued by medical professionals, based upon medical evidence of the Veteran's symptoms, and relied upon objective diagnostic criteria. The Veteran was found to have negative scores for PTSD screenings in September 2011, March 2016, June 2016, and July 2016. A May 2013 SSA record noted that Dr. Jonas, a board-certified medical expert in the field of psychiatry, found that there was no evidence in the record of PTSD. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has current disability of PTSD, to include pain that causes functional impairment that affects earning capacity, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). For example, of record are medical records from August 1984 to September 2017, and the preponderance of the evidence during this time period does not support a current disability of PTSD, to include pain that causes functional impairment that affects earning capacity. These records cover a 33-year period, and the lack of documentation of PTSD, to include pain, is evidence against the claims for service connection for PTSD. While the Veteran believes he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence, which found no current disability. Similarly, while the Veteran alleges that an acquired psychiatric disorder is related to service, he is not competent to attribute an acquired psychiatric disorder to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between an acquired psychiatric disorder and service, and the nexus element of a service-connection claim is not met. VA did not provide the Veteran with a VA examination in connection with this claim. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, for the reasons described above, the Board finds both that there was not an event, injury, or disease that occurred in service, or that schizophrenia manifested during the one-year period following service discharge. The evidence also does not establish an acquired psychiatric disorder may otherwise be associated with the Veteran's service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one of the criteria is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this claim. In sum, for all the reasons laid out above, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for an acquired psychiatric disorder. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. 4. Entitlement to increased rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine prior to June 5, 2017, and in excess of 40 percent thereafter. In a September 1984 rating decision, the Veteran was granted service connection for post-traumatic arthralgia of the lumbodorsal spine and assigned a 20 percent evaluation from March 10, 1984. In an August 1985 rating decision, the Veteran was assigned a 10 percent evaluation from December 1, 1985. An October 1986 deferred rating decision was issued for further evaluation of the Veteran's lumbodorsal spine disability. In the September 2011 rating decision currently on appeal, the Veteran was assigned a 20 percent evaluation, effective September 20, 2010. In a September 2017 rating decision, the disability was recharacterized as degenerative disc disease of the thoracolumbar spine and the Veteran was assigned a 40 percent rating effective June 5, 2017. The Veteran's degenerative disc disease of the thoracolumbar spine will be considered under DC 5242. Thereunder, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235 to 5242. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. A. Prior to June 5, 2017 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine prior to June 5, 2017. The reasons follow. The evidence shows that the Veteran's degenerative disc disease of the thoracolumbar spine is manifested with pain and limitation of motion, but does not result in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, to warrant a 40 percent rating. At worst, the Veteran's forward flexion was limited to 60 degrees, and no ankylosis of the spine was found, as shown in the July 2011 VA examination. In the July 2011 VA examination, the Veteran's lumbar spine was forward flexion from zero to 60 degrees, extension to 20 degrees, right and left lateral flexion zero to 20 degrees, lateral rotation to the right and left to 20 degrees. The examination documented objective evidence of pain on active range of motion. There were no additional limitations found after three repetitions of range of motion. It was also reported that the Veteran did not have a positive finding for Lasegue's sign. The examination noted that muscle spasm, localized tenderness or guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour. In VA treatment records from January 2011, it was noted that the Veteran's lumbosacral range of motion is limited significantly in flexion and extension, and that the Veteran experiences muscle spasm. However, specific findings of range of motion in terms of degrees were not recorded. The Veteran was shown to have a normal gait. In a May 2011 VA treatment record, the Veteran reported lumbar pain for many years, and a pain that he rated as five out of 10. The Veteran was found to have increased pain on flexion, with no motor or sensory deficits, and a negative result for the straight leg raising test. In a June 2011 VA treatment record for physical therapy, the Veteran's limitation of motion was recorded in terms of percent discomfort, but was not recorded in terms of degrees of loss of motion. In an April 2016 VA treatment record, the Veteran was shown to have a normal gait. By the time of a May 2017 VA treatment record, the Veteran reported an unstable gait. These records do not support that the Veteran's degenerative disc disease of the thoracolumbar spine is manifested with forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In a May 2013 SSA record, it was reported that in a January 2011 disability examination, the Veteran had normal findings for his sensory, motor, and reflex evaluations. The Veteran ambulated with a nonantalgic gait. Although it was documented the Veteran's range of motion of the lumbar spine was decreased with regard to flexion and extension, this finding was also not expressed in terms of degrees of loss of motion. This record also does not support a finding of the evidence necessary to warrant a 40 percent rating. Although the referenced January 2011 disability examination note a positive result for the straight leg raising test, treatment records subsequent to this date do not support complaints of radiculopathy of either lower extremity, and continuously documented negative results for the straight leg raising test. As such, the Board affords this record lessened probative value. In VA treatment records from August 2016 and November 2016, the Veteran reported the use of a cane to walk, however, the evidence does not support, and the Veteran does not contend, that the use of a cane was prescribed by a physician or that is attributed to his degenerative disc disease of the thoracolumbar spine. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, which is the criteria needed for a 40 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and reflexes in his lower extremities, and had forward flexion to 60 degrees. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, which would be required for a finding that the Veteran was entitled to a 40 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. In sum, the evidence does not show that a disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine prior to June 5, 2017 is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. From June 5, 2017 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine from June 5, 2017. The reasons follow. The evidence shows that the Veteran's degenerative disc disease of the thoracolumbar spine is manifested with pain and limitation of motion, but does not result in unfavorable ankylosis of the entire thoracolumbar spine, to warrant a 50 percent rating. At worst, the Veteran's forward flexion was limited to 35 degrees, extension to 10 degrees, right lateral flexion and rotation to 25 degrees, left lateral flexion and rotation to 30 degrees, and no ankylosis of the spine was found, as reported in the August 2017 VA examination. The same examination noted that the Veteran's abnormal range of motion resulted in functional loss, manifested by difficulty with bending, walking, standing and lifting. Pain was noted on the examination, and was found to result in functional loss. After repetitive-use testing with at least three repetitions, the Veteran's forward flexion was limited to 30 degrees, extension to 10 degrees, right lateral flexion and rotation to 25 degrees, and left lateral flexion and rotation to 30 degrees. This functional loss was attributed to pain. The Veteran reported flare-ups of the back and described them as sharp shooting pains in the lower back. The Veteran was not examined immediately after repetitive use over time, and the examination was documented as medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain was found to significantly limit functional ability with repeated use over time. The Veteran was not examined during a flare-up, but was medically consistent with the Veteran's statements describing functional loss during a flare-up. The Veteran was found to have negative results for his straight leg raising test. In a July 2017 VA treatment record, the Veteran's lumbar flexion was limited to 20 degrees and it was reported that he had severe loss of extension. The Veteran's strength was grossly assessed at a four out of five. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of unfavorable ankylosis of the entire thoracolumbar spine, which is the criteria needed for a 50 percent rating. Examination results throughout the appeal period show that the Veteran had forward flexion to at least 20 degrees. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in unfavorable ankylosis of the entire thoracolumbar spine, which would be required for a finding that the Veteran was entitled to a 50 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. In sum, the evidence does not show that a disability rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine from June 5, 2017 is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 5. Entitlement to TDIU is remanded. The Veteran has previously raised the issue of entitlement to a TDIU rating. Despite a January 2015 deferred rating decision, which noted the TDIU issue had been raised and required initial development, it does not appear that VA subsequently conducted development regarding the issue. A substantially complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is helpful in establishing entitlement to a TDIU rating because it gathers relevant and indispensable information regarding the Veteran's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, the Veteran attests to his current employment status, and it signals an understanding of the incompatibility of the TDIU benefit with substantially gainful work. A properly signed and executed VA Form 21-8940 further enables VA to gather the information necessary to determine entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. Significantly, the record does not reflect that the Veteran has yet submitted a completed a VA Form 21-8940. As such, upon remand, VA should properly notify the Veteran regarding his TDIU claim and request that he submit VA Form 21-8940. The matter is REMANDED for the following action: 1. Properly notify the Veteran and his representative concerning the information and/or evidence needed to substantiate a TDIU claim. Request that the Veteran submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Adjudicate the issue of entitlement to a TDIU to determine if entitlement to the benefit sought is warranted. If any benefit sought remains denied, the Veteran and representative should be furnished with an SSOC. An appropriate period of time should then be allowed for a response before the matter is returned to the Board for further adjudication. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.