Citation Nr: 21007515 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-44 211 DATE: February 9, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. A rating of 40 percent, but no higher, from August 21, 2015 to October 28, 2020 for degenerative disc disease of the lumbar spine with facet arthritis is granted. A rating higher than 40 percent as of October 28, 2020 for degenerative disc disease of the lumbar spine with facet arthritis is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II (diabetes) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a link between the Veteran’s current psychiatric disorders, including PTSD and depressive disorder, and a reported in-service personal assault. 2. There is no credible supporting evidence that an in-service personal assault occurred. 3. The Veteran’s low back disability has been manifested by forward flexion estimated to be less than 30 degrees during flare-ups, but not by ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, including PTSD and depression, have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.04. 2. The criteria for a rating of 40 percent, but no higher, from August 21, 2015 to October 28, 2020 for degenerative disc disease of the lumbar spine with facet arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating higher than 40 percent as of October 28, 2020 for degenerative disc disease of the lumbar spine with facet arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to February 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded the matters for additional development in May 2018 and October 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing is of record. The Board notes that the issue of entitlement to TDIU, and subsequently to the effective date of the award of TDIU, was previously on appeal before the Board under this docket as part and parcel of the Veteran’s increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In May 2020, in response to an April 2020 rating decision granting TDIU effective October 16, 2019, and higher ratings for lower extremity radiculopathy, the Veteran timely opted into the modernized appeal system by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement) with regard to the effective date of award of TDIU, and the “[o]nset of increased rating for radiculopathy for right and left lower extremity [sic].” See 38 C.F.R. §§ 3.2400, 19.2(d)(2), 20.202, 20.203. He elected a hearing with a Veterans Law Judge. See 38 C.F.R. § 20.202(b)(2). Accordingly, these issues are no longer part of the legacy appeal under the current docket. See 38 C.F.R. § 3.2400(d). Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran seeks to establish service connection for PTSD based on a personal assault which he states occurred during active service. See December 2012 VA Form 21-4138. More specifically, he states that a female sergeant who was “supposed to be [his] tutor” came into his room and “forced [him] into having sex.” August 2015 VA Form 21-0791a. For the following reasons, the Board finds that service connection is not established. To establish service connection for PTSD, there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DMM-V). Diagnoses of PTSD are presumed to have been made in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, there are exceptions in which a claimant’s lay testimony alone may establish the occurrence of the stressor. 38 C.F.R. § 3.304(f). These exceptions include when PTSD is diagnosed during service and the claimed stressor is related to that service; when the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; stressors related to being a prisoner of war; and stressors related to fear of hostile military or terrorist activity. Id. In all these cases, the claimed stressor must be consistent with the circumstances, conditions, or hardships of the veteran’s service. Id. In PTSD claims based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the claimant’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. Further, for PTSD claims based on personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 2011). Thus, “a medical opinion based on a personal examination of a veteran can be used to establish the occurrence of a stressor.” Id.; see Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner’s finding that the claimant’s PTSD is etiologically linked to the reported in-service stressor can serve as verification that the stressor occurred). The sole fact that a veteran never reported an in-service sexual assault may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Here, the VA treatment records show diagnoses of PTSD and major depressive disorder. See, e.g., June 2018 VA Treatment Record. These diagnoses are presumed to have been made in accordance with the DSM criteria. See Cohen, 10 Vet. App. at 139-42. Thus, the first element is satisfied. See 38 C.F.R. § 3.304(f). The second and third elements, however, are not satisfied. The preponderance of the evidence weighs against a link between the Veteran’s symptoms and his reported stressor. In this regard, the service treatment records do not show that psychiatric symptoms manifested in service. The February 1985 separation examination report reflects a normal psychiatric evaluation. The Veteran denied a history of symptoms such as depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping in the February 1985 report of medical history. He has not stated, and the record does not otherwise show, that his psychiatric symptoms manifested in service. The service personnel records show that on or about January 2, 1982, the Veteran failed to appear at the prescribed time for his appointed place of duty, and was to receive a nonjudicial punishment. The Board finds that this record does not indicate that the Veteran was having psychiatric symptoms at the time, or that he was exhibiting behavior changes indicative of trauma. According to a September 2015 VA treatment record, the Veteran reported that he received one Article 15 during service due to being late for check-in after a flight delay returning home from Christmas break. Thus, the Veteran’s failure to appear for duty on January 2, 1982, shortly after Christmas, is attributable to the flight delay. The VA treatment records show that the Veteran’s psychiatric symptoms are generally attributable to a longstanding history of substance use that began prior to his period of active service, and childhood abuse. More specifically, an October 2002 VA treatment record reflects that the Veteran reported that he began using cocaine at the age of twenty-one. In addition, he first smoked marijuana at age eighteen, and reported being “high every day” while in college. A March 2006 Social Security Administration (SSA) consultative examination report reflects that the Veteran related a history of depression and polysubstance abuse since he was eighteen years old. His DD 214 shows that he entered active service when he was nearly twenty-five. The Veteran has also reported substance use triggered by post-service events. In this regard, a September 2015 VA treatment record reflects that the Veteran started drinking heavily after a divorce in 1988. Regarding childhood abuse, a September 1996 VA treatment record reflects a finding that the Veteran experienced PTSD symptoms related to physical abuse as a child. A September 2010 VA treatment record also reflects that the Veteran related a history of childhood abuse. Moreover, in a June 2013 VA PTSD examination report, the examiner noted that the Veteran experienced significant emotional and physical abuse as a child, and that he became upset while discussing this abuse. “His childhood abuse was at minimum a risk factor [for developing] PTSD[,] but he may have developed PTSD from his childhood abuse [sic].” In the June 2013 VA examination report, immediately after the above discussion regarding the Veteran’s childhood abuse, the examiner inexplicably stated that the Veteran’s PTSD “is at least as likely as not . . . caused by or a result of his MST [military sexual trauma].” The examiner provided no rationale for this finding. Indeed, the examiner observed that it was unclear whether the Veteran experienced an in-service personal assault (“MST”), and that the examiner could not resolve the issue without resort to mere speculation. In this regard, the examiner stated that there was no record of any marked change in the Veteran’s behavior during service, and in fact he received excellent performance reviews. The examiner also noted that the Veteran previously denied MST to mental health providers (for example, the Board notes that VA treatment records dated in August 2005, April 2007, and July 2010 reflect that he denied experiencing an MST; a January 2012 VA treatment record states that he denied a history of sexual abuse), but added that the Veteran stated this was because he was not comfortable revealing or discussing the MST. A VA PTSD examination was performed in November 2020. According to the examination report, the Veteran related that the female staff sergeant made a “sexual advance” on him while they were in his bedroom. He stated it “only last[ed] a few minutes” and he was left alone while the sergeant continued having an affair with another sergeant. The Veteran stated he continued working with the sergeant. The examiner observed that as the Veteran was relating this history he was “calm, happy, [and there was] no evidence of increased baseline anxiety.” In the November 2020 opinion, the examiner concluded that the Veteran’s psychiatric disorder was less likely than not related to service or his service-connected back disability. The examiner explained that the evidence showed that the Veteran started using substances, specifically alcohol, cocaine, and marijuana, prior to service. The examiner found no evidence of behavior changes during the Veteran’s service, a deterioration in work performance, or other indications that a personal assault occurred. In addition, the November 2020 examiner found that the evidence did not show PTSD symptoms linked to a personal assault during service. Instead, the evidence showed that the Veteran had a strong history of substance use beginning prior to service, and that under the influence of drugs he had episodes of depression, panic attacks, and anxiety. His economic and social behavior changes were always due to his drug and alcohol use. The evidence did not show that substance or the Veteran’s anxiety disorder were related to any physical condition such as service-connected lumbar degenerative disc disease with radiculopathy, to include any pain or functional limitations associated with these disabilities. Rather, the evidence showed that the Veteran started using drugs prior to service and continued until 2007. The November 2020 examiner further stated that the Veteran’s depressive disorder was due to his chronic substance use. There was no evidence that it was related to his service-connected lumbar spine disability and associated radiculopathy, including pain and associated functional limitations. Rather, the evidence showed that his mental disorder was due to chronic drug use that began prior to his active service and continued until 2007. The examiner noted in this regard that the Veteran’s current mental disorder is a very common sequel of chronic polysubstance use. The November 2020 VA medical opinion is probative, as it is based on a review of the Veteran’s medical history and is supported by a thorough explanation. The above evidence shows that the Veteran’s PTSD, anxiety, and depressive disorder are not linked to a personal assault in service; rather, VA examiners and treating mental health professionals have found that the Veteran’s psychiatric disorders are due to his chronic substance use, which began years before his period of active service, and also due to childhood abuse. The statement by the June 2013 VA examiner that the Veteran’s PTSD “is at least as likely as not... caused by or a result of his MST” is not probative, as no explanation was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and that critical pieces of information from a claimant’s medical history can lend credence to the opinion of a medical expert who considers them, and detract from the medical opinions of experts who do not). Indeed, the same examiner noted the significant physical and emotional abuse the Veteran experienced as a child, which the examiner stated may have caused the Veteran’s PTSD. The examiner also noted that the evidence of record did not provide support for the occurrence of an in-service personal assault, such as evidence of behavior changes. Indeed, the examiner observed that the Veteran received excellent performance reviews. Thus, as the examiner did not provide an explanation, or reconcile the conclusion that the Veteran “at least as likely as not” had PTSD due to MST with the findings that he may have had PTSD due to childhood abuse and that the record did not support that the reported in-service assault occurred, it is not probative on this issue. See id. It is outweighed by the November 2020 VA medical opinion. In sum, the preponderance of the evidence weighs against a link between the Veteran’s PTSD, depression, anxiety, and any other psychiatric disorder and his period of active service. There is also no credible supporting evidence that the claimed stressor occurred. No medical professional has found that the Veteran exhibited behavior changes during service indicative of a potential assault. As discussed above, he received one nonjudicial punishment for failing to appear at his appointed place of duty, but this was attributable to a flight delay rather than a performance issue. There is no evidence showing behavior changes, deteriorating performance, requests for change of assignment, or other potential markers indicating that an assault may have occurred. No medical professional has found that the Veteran’s PTSD was linked to an in-service assault. As explained above, the June 2013 VA examiner’s statement that the Veteran’s PTSD is at least as likely as not due to an in-service personal assault is not supported by an explanation, and is provided in the context of a discussion concerning the Veteran’s childhood abuse as a possible source of his PTSD. Indeed, the same examiner stated that there was no supporting evidence that the reported stressor occurred. In addition, the Veteran’s report of the in-service assault has been conflicting. He stated in the August 2015 VA Form 21-0791a that a staff sergeant forced him to have sexual relations with her, whereas at the November 2020 VA examination he stated that she only made sexual advances. These inconsistences weigh against the credibility of his statements. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). But even if they were consistent, an in-service stressor has not been established with credible supporting evidence, as required under 38 C.F.R. § 3.304(f). Accordingly, the second and third elements of a claim for PTSD have not been met. See 38 C.F.R. § 3.304(f). For the same reason, the preponderance of the evidence weighs against an in-service disease, injury, or event related to any other diagnosed psychiatric disorder, including major depressive disorder. Therefore, service connection on a direct basis is not established. See Holton, 557 F.3d at 1366. At the January 2018 Board hearing, the Veteran stated that he gets depressed because he “can’t do things” due to functional limitations caused by his back disability. Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. 38 C.F.R. § 3.310(b). The evidence does not show that he has a psychiatric disability caused or aggravated by his service-connected low back disability. In the November 2020 VA opinion, the examiner found that the evidence did not show the Veteran’s psychiatric disorders were related to his service-connected back disability, but rather were due to his substance use. The Veteran, through his representative, has also argued that his psychiatric disorder is secondary to medications prescribed for his service-connected disabilities. See May 2020 Correspondence. This argument does not specify which medications are believed to have caused or aggravated the Veteran’s psychiatric disorder, and no explanation has been provided in support of this theory. The evidence of record does not otherwise indicate that any medications prescribed for the Veteran’s service-connected disabilities have caused or aggravated his psychiatric disorder. Accordingly, a VA medical examination or medical opinion is not warranted on this issue. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that while competent evidence is not required, a claimant’s “conclusory generalized statement that his service illness caused his present medical problems” was not sufficient to trigger the duty to provide an examination or opinion); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c). In sum, the criteria for service connection on a secondary basis are not met. See 38 C.F.R. § 3.310. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability 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 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Low Back Disability The Veteran’s service-connected low back disability has been assigned a 20-percent rating prior to October 28, 2020, and a 40-percent as of that date. For the following reasons, the Board finds that the criteria for a rating of 40 percent have been met from August 21, 2015 to October 28, 2020. The criteria for a rating higher than 40 percent have not been satisfied. A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned where unfavorable ankylosis of the entire spine is demonstrated. Id. The above evaluations apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code. Id. Note (1). . B. Analysis The November 2015 VA examination report reflects diagnoses of lumbar arthritis, lumbar intervertebral disc syndrome, and lumbar stenosis. The examiner noted that activities involving bending and twisting, standing, walking, and sitting caused back pain. Decreased range of motion affected ambulation and activities requiring use of the back. Flare-ups occurred with cold weather resulting in increased pain and decreased range of motion. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 50 degrees. There was no additional loss of function or range of motion after three repetitions. The examination was not being performed during a flare-up or after repeated use of the back over time. The examiner did not provide an estimate of additional loss of range of motion with repeated use over time or during flare-ups, stating that such an estimate could not be provided without resort to mere speculation. The October 2019 VA examination report reflects that the Veteran had constant back pain with a “weekly frequency” and an intensity of 9 out of 10 in severity on the pain scale. The functional limitation was “decreased endurance to standing and walking.” Flare-ups occurred with lifting objected or prolonged sitting or standing. The examiner stated that the duration of flare-ups was all day, and that flare-ups and repeated use over time did not affect range of motion of the lumbar spine. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 45 degrees. There was no additional loss of function or range of motion after three repetitions. The examination was not being performed during a flare-up or after repeated use of the back over time. The examiner stated that there was no “basis” to offer an estimate of additional loss of function or range of motion with repeated use of the back over time or during flare-ups. The October 2020 VA examination report reflects that the Veteran had constant daily back pain which was aching and sharp, and which radiated to both lower extremities. About three or four times per week, the back pain would flare up. The pain during flare-ups was severe, and lasted about two or three hours. On range-of-motion testing, forward flexion of the thoracolumbar spine was to 40 degrees. There was no additional loss on repetitive use testing. The examiner estimated that during flare-ups or with repeated use of the lumbar spine over time, forward flexion would be to 20 degrees. With regard to functional impairment, the examiner stated that limitation in range of motion and pain accompanied efforts to bend, twist, lift, and carry objects. The Veteran was limited in his ability to lift, push, pull, or carry objects weighing more than ten pounds, or to engage in activities that required rapid trunk movement such as repetitively going from sitting to standing and vice versa. The Board finds that a 40 percent rating is warranted for the Veteran’s low back disability effective August 21, 2015, the date of claim. In this regard, the Board instructed in its October 2020 remand that a VA examiner should review the November 2015 and October 2019 VA examination reports and provide an estimate of additional loss of range of motion of the Veteran’s lumbar spine, if any, during a flare-up or with repeated use over time. While the October 2020 VA examiner did not provide a retroactive opinion, the Board finds that the examiner’s estimate that forward flexion of the Veteran’s lumbar spine would be limited to 20 degrees during flare-ups or with repeated use over time can be applied to the entire period under review. As shown above, the November 2015 and October 2019 VA examiners did not provide such estimates. The Veteran’s low back disability has been shown to be manifested by chronic pain and forward flexion limited to 50 degrees or less in all three VA examinations. The evidence does not indicate that it changed significantly in the roughly five-year period between the November 2015 VA examination and the October 2020 VA examination. The RO assigned a 40 percent rating effective October 28, 2020 based on the estimate provided in the October 2020 examination of that date, since forward flexion of the thoracolumbar spine limited to 30 degrees or less is assigned a 40-percent rating under the rating criteria. See 38 C.F.R. § 4.71a, General Rating Formula. Accordingly, as the examiner’s estimate can be applied to the entire period under review, the Board finds that a 40 percent rating is warranted effective August 21, 2015, the date of claim. The evidence does not show that the Veteran’s low back disability has been manifested by ankylosis. Accordingly, the criteria for a rating higher than 40 percent have not been met. See 38 C.F.R. § 4.71a, General Rating Formula. Under DC 5243, intervertebral disc syndrome (IVDS) may be evaluated under the General Rating Formula, as discussed above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Here, the record shows that the Veteran’s IVDS of the lumbar spine has not been manifested by episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician during a 12-month period. Thus, the criteria for a compensable rating under the Formula for Rating IVDS have not been met. See id. Associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code. As discussed above, the Veteran has opted into the modernized appeal system with regard to the ratings assigned his bilateral lower extremity radiculopathy. See May 2020 VA Form 10182. Accordingly, the Board will not address these evaluations in the present decision. In sum, an effective date of August 21, 2015 is granted for the current 40-percent evaluation of the Veteran’s low back disability. As the preponderance of the evidence shows that the criteria for a rating higher than 40 percent have not been met, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for diabetes is remanded. The Veteran claims service connection for diabetes, in part, as secondary to his service-connected low back disability and bilateral lower extremity radiculopathy. See 38 C.F.R. § 3.310. Specifically, he states that poor physical conditioning due to functional limitations caused by these disabilities “contributed to or exacerbated his diagnosed diabetes.” See December 2020 Correspondence. In a June 2020 VA medical opinion, the examiner found that the Veteran’s diabetes was not “caused by or a result of” his lack of exercise due to his low back disability, but rather was due to his diet. However, the examiner did not address whether the Veteran’s diabetes was aggravated due to functional limitations associated with his low back disability and radiculopathy. See 38 C.F.R. § 3.310(b); El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a medical opinion that a claimed disability is “not due to,” “not caused by,” or “not related to” a service-connected disability is insufficient to address the issue of aggravation under § 3.310(b)). Accordingly, a new medical opinion must be obtained that adequately addresses the issue of aggravation. The matters are REMANDED for the following action: Obtain a VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes has been aggravated by his service-connected low back disability and lower extremity radiculopathy due to poor physical conditioning caused by functional limitations associated with these disabilities. “Aggravation” means there is an increase in severity of a disease or injury beyond a medically established baseline which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310(b). The examiner must provide a complete explanation in support of the conclusion reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.