Citation Nr: 21040811 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-37 065 DATE: July 7, 2021 ORDER Entitlement to a 10 percent rating, and no higher, for chronic suppurative otitis media from March 10, 2009 is granted; any other increased rating, to include for bilateral serious otitis media, is denied. Entitlement to a rating in excess of 20 percent for right shoulder disability (degenerative joint disease, previously rated as right upper extremity strain) is denied. Entitlement to a rating in excess of 10 percent for residuals of an injury to the right (major) ring and little fingers is denied. Entitlement to initial ratings in excess of 10 percent prior to April 16, 2013, and in excess of 20 percent since April 16, 2013, for lumbosacral strain is denied. Entitlement to service connection for hives as secondary to unspecified anxiety disorder is granted. Entitlement to service connection for a seizure disability, to include as secondary to service-connected disability, is denied. Entitlement to service connection for a sleep disability, to include as secondary to service-connected disability, is denied. Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to an acquired psychiatric disability other than unspecified anxiety disorder and/or depressive disorder, to include as secondary to service-connected disability, is denied. 11. New and material evidence has not been received; the petition to reopen a claim of entitlement to service connection for substance abuse is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran is entitled to a 10 percent rating, and no higher, for chronic suppurative otitis media from March 10, 2009; however, he has not had hearing loss to a compensable degree at any time relevant to this appeal. 2. The Veteran's right shoulder disability has not manifested in limitation of motion of his arm to midway between his side and shoulder level (i.e., to 45 degrees) or more severe limitation of motion, such as to just 25 degrees from his side. 3. The Veteran's residuals of an injury to the right (major) ring and little fingers has not manifested in unfavorable ankylosis or amputation or symptoms analogous to such. 4. Prior to April 16, 2013, the Veteran's lumbosacral strain did not manifest in abnormal gait or spinal contour, forward flexion limited to 60 degrees or less, or a combined range of motion of the thoracolumbar spine limited to 120 degrees or less; from that date, he has not had ankylosis of the spine. 5. Resolving all reasonable doubt in the Veteran's favor, his anxiety causes him to have intermittent hives. 6. The most probative (i.e., competent and credible) evidence is against finding that the Veteran has a seizure disorder, a sleep disorder, a respiratory disability, a cervical spine disability, and/or an acquired psychiatric disability other than unspecified anxiety disorder and/or depressive disorder, which was caused by his service and/or caused or aggravated by a service-connected disability or that any such disability manifested to a compensable degree within a year of his separation from service or is otherwise related or attributable to his service. 7. As for the claim for service connection for substance abuse, the additional evidence submitted or otherwise obtained since the prior (final and binding) denial of this claim, when considered with the record as a whole, is cumulative or redundant of the evidence of record at the time of the last final and binding denial of this claim and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The criteria are met for a 10 percent rating, and no higher, for chronic suppurative otitis media from March 10, 2009; the criteria are not met for any other increased rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Codes (DCs) 6100, 6201, 6211, 6260. 2. The criteria are not met for a rating in excess of 20 percent for right shoulder disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5010-5201. 3. The criteria are not met for a rating in excess of 10 percent for residuals of an injury to the right (major) ring and little fingers. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5299-5223. 4. The criteria are not met for increased ratings for lumbosacral strain. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 5. The criteria are met for service connection for stress hives as secondary to an acquired psychiatric disability of anxiety. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7899-7819. 6. The criteria are not met for service connection for a seizure disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8999-8911. 7. The criteria are not met for service connection for a sleep disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6899-6847. 8. The criteria are not met for service connection for a respiratory disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6899-6817. 9. The criteria are not met for service connection for a cervical spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.471a, DC 5243. 10. The criteria are not met for service connection for an acquired psychiatric disability other than unspecified anxiety disorder and/or depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.129, DCs 9201-9440. 11. Evidence received since the last final and binding denial of the claim of entitlement to service connection for substance abuse is not new and material; consequently, the criteria are not met to reopen this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1981 to October 1984 and additional service in the Army National Guard. These claims were previously before the Board in August 2018 but were remanded back to the regional office (RO) for further development and consideration including for needed VA examinations and medical opinions. There since has been the required compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of its entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. According to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim provided the evidence reflects a worsening of the disability during that one year time period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Thus, the Board has considered the evidence from one year prior to the date on which the Veteran filed a claim to determine whether it reflects a worsening during that period. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id., at 43. 1. Entitlement to an increased (compensable) rating for bilateral serious otitis media and/or chronic suppurative otitis media In March 2009, the Veteran filed claims for increased ratings for his service-connected disabilities. He is in receipt of service connection for bilateral serious otitis media, evaluated as noncompensable under DC 6201, effective from October 6, 1984. According to DC 6201, chronic nonsuppurative otitis media with effusion (serious otitis media) is to be rated under the criteria for hearing impairment. During the pendency of his appeal and since the Board's August 2018 Remand, the RO, in a November 2020 decision, granted service connection for chronic suppurative otitis media with an evaluation of 10 percent under DC 6200 effective from December 3, 2010. Under 6200, chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) is to be rated as 10-percent disabling during suppuration or with aural polyps, and hearing impairment and complications shall be rated separately. Essentially, the Veteran's initial disability of bilateral serious otitis media (DC 6200) is now also separately in receipt of service connection for chronic suppurative otitis media (DC 6201) to better reflect his current symptoms. The Veteran's notice of disagreement (NOD) asserts that he has recurrent ear infections occurring five to six times per year. As concerning hearing impairment, disability ratings for hearing loss are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz (Hz)). The Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). An April 2009 VA examination report reflects that the Veteran reported recurrent ear infections that temporarily decrease his hearing. He also reported that at the present time, he hears low pitched sounds in both ears. Examination of the tympanic membranes showed slight dullness of both sides but no retraction. The examiner found that the Veteran did not have impaired hearing grossly. A May 2010 VA examination report (audiology) reflects that the Veteran had normal hearing bilaterally on audiology testing and speech recognition score testing. A June 2010 VA examination report reflects that the Veteran reported recurrent infections which occur five to six times a year, with perforations only two to three times per year. He reported that he has been treated in the past with antibiotics and has recently been treated with antihistamines and decongestions. Upon examination, both tympanic membranes were retracted. He was diagnosed with chronic otitis media with intermittent episodes of tympanic membrane perforation. A July 2010 VA examination report (audiology) addendum again notes that the Veteran's hearing is within normal limits bilaterally. A January 2011 VA examination report (audiology) reflects that the Veteran did not have hearing loss which was considered ratable for VA purposes because his average hearing was 21.25 for the right ear, and 20 dB for the left ear, and he had a 100 percent score for speech recognition. 38 C.F.R. § 3.385. An April 2013 VA Disability Benefits Questionnaire (DBQ) reflects that the Veteran did not have hearing loss which was considered ratable for VA purposes. His average hearing was 26 dB for the right ear, and 22 dB for the left ear, and a 96 percent score for speech recognition using the Maryland CNC speech recognition test. The report revealed the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 25 30 LEFT 25 15 20 30 A July 2020 DBQ reflects the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 30 35 20 LEFT 40 45 25 30 On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was recorded as 32.50 dB. His puretone threshold average for the left ear was recorded as 35 dB. His speech discrimination score was 100 percent for the right ear and 96 percent for the left ear using the Maryland CNC speech recognition test. A September 2020 DBQ reflects that the Veteran treats his ears with once-a-day prescription ear drops. He was noted to have hearing impairment and/or tinnitus; however, an audiology examination was not performed to confirm that he does at least not as concerning hearing loss since this is on objective, rather than subjective, determination unlike tinnitus. Based on the above results, the Veteran's hearing loss has been a Level I for both the right and left ear according to Table VI. Applying the criteria of Table VI to Table VII, a noncompensable (0 percent) rating is derived. As already explained, under DC 6200, a maximum 10 percent rating is warranted for chronic suppurative otitis media. As such a higher rating is not warranted. (The Veteran is already in receipt of service connection for tinnitus.) Even considering his contention as to "temporary hearing loss", there is no competent evidence that it would meet the criteria for a compensable rating. To reiterate, ratings for hearing loss are derived by a mechanical application and not by subjective complaints. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (explaining that disability ratings for hearing impairment are derived by a mechanical, meaning nondiscretionary, application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered). The Veteran's claim has been pending since March 10, 2009; however, the RO granted an evaluation effective from the date of his NOD. He is competent to state that he has discharge from an ear. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). In addition, there are several clinical records noting objective findings of discharge from his ears (e.g., October 2007, June 2011, February 2013, October 2013). Thus, the Board finds that he is credible as to recurrent ear infections with discharge. As such, and in giving him the benefit of the doubt, the Board finds that the effective date of his award of 10 percent should be from the date of the filing of his claim, which was on March 10, 2009. An earlier effective date is not warranted since the evidence does not reflect an increase in severity during the one-year period immediately preceding the filing of his claim. In other words, entitlement to this rating increase was not factual ascertainable during that immediately preceding year. See Harper v. Brown, 10 Vet. App. 125 (1997). 2. Entitlement to an initial rating in excess of 20 percent for right shoulder and upper extremity strain The Veteran's right shoulder disability is evaluated as 20-percent disabling effective from December 23, 2008 under DC 5010-5201. The Veteran has been noted to be right-hand dominant (see, e.g., May 2016 DBQ). Full range of motion of the shoulder is from 0 to 180 degrees on abduction and forward elevation (flexion) and from 0 to 90 degrees on internal and external rotation. Shoulder level is 90 degrees. See 38 C.F.R. § 4.71, Plate I. A 20 percent rating is warranted when the arm is limited in motion at the shoulder level (so to 90 degrees). The Veteran would be entitled to a higher rating of 30 percent if he had limitation of motion to midway between his side and shoulder level (meaning limited to 45 degrees since to 12 of shoulder level) or an even higher 40 percent rating if he had limitation of motion to just 25 degrees from his side. (See changes in the rating criteria for evaluating musculoskeletal disabilities that are effective February 7, 2021 and clarify/define ranges of motion.) The most probative evidence, however, as noted below, does not suggest the Veteran has motion limited to these greater extents even when considering his pain, such as to warrant an increased rating. An August 2010 VA examination report reflects that the Veteran reported that his pain is constant, usually rating 3 to 4 out of 10. He reported that he will occasionally experience a flare up of an 8 out of 10 occurring once a month and brought on by repetitive lifting or repetitive use. The flare up will last one to two days. He also reported occasional numbness around the elbow region. Upon examination, the Veteran had forward flexion to 180 degrees, full extension, abduction to 180 degrees, and external and internal rotation to 90 degrees. There was no further loss of function after repetitive use testing. A May 2016 DBQ reflects that upon examination, the Veteran had flexion from 0 to 120 degrees, abduction from 0 to 110 degrees, external rotation from 0 to 70 degrees, and internal rotation from 0 to 90 degrees. There was no evidence of pain with weight bearing, but evidence of localized tenderness on palpation. There was no further loss of function after repetitive use testing. The Veteran had full strength with no ankylosis. A September 2020 DBQ reflects that the Veteran reported that he treats with chiropractic care, aquatic physical therapy, and NSAIDs (non-steroidal anti-inflammatory drugs). He reported that he has difficulty with lifting, hammering, and cutting wood. Upon examination, he had full flexion, full abduction, full external rotation, and full internal rotation. In other words, all ranges of motion were normal. No pain was noted upon examination of ranges of motion, but pain was noted with weight bearing. There was no further loss of function after repetitive use testing. The Veteran had full strength with no ankylosis. The Veteran denied flare-ups. In sum, the Veteran has had generally what can be described as minor pain, infrequent or occasional flare-ups of more severe pain, and has a significant range of motion. Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted because the overall disability picture (even with consideration of flare-ups and pain with motion) more closely resembles that warranting a 20 percent rating than a higher rating. 3. Entitlement to a rating in excess of 10 percent for residuals of an injury to the right (major) ring and little fingers As is the case here, when two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable ankylosis, favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. 38 C.F.R. § 4.71a, DCs 5216 5230, Note (2). The Veteran's right ring and little finger disability is evaluated as 10 percent disabling under DC 5299-5223. Under DC 5233, ankylosis of two digits (in this case, the ring and little fingers) warrants a 10 percent rating. A 20 percent rating would be warranted for unfavorable ankylosis. With unfavorable ankylosis, consideration is also given to whether evaluation as amputation is warranted. See Note to 38 C.F.R. § 4.71a, DC 5219. An April 2009 VA examination report reflects that the Veteran reported pain and reduced grip strength; he denied any "real flare-ups". The examiner noted that upon examination, the Veteran had "discomfort" of the hand, and a moderate flexion deformity of the fifth finger. In the ring (fourth finger), he had 80 degrees of flexion at the MCP joint, and 90 degrees of flexion of the interphalangeal joints. He had apposition of the thumb to the fourth finger, but it was weak at 3/5, and he had 0 degrees of extension. There appeared to be some fatigue in terms of flexion of the fourth finger with repetitive motion. With regard to the ring finger, he had 30 degrees of PIP and DIP, modest hyperextension of the MP joint. With primary motion he has 80 degrees of flexion of the MP joint, and PIP joints. Repetitive motion resulted in fatigue, lack of endurance and increased difficulty in extending his PIP digit. He had apposition of the fifth finger ot the thumb, but it was quite weak at 1-2/5. His grip strength was noted to be 4/5. The examiner noted that the symptoms were not impairing to the Veteran's current employment in an administrative position, but had apparently affected his prior job (An August 2010 examination report reflects he has been working as a site vender since January 2008; thus, his finger disability did not cause marked interference with employment during the pendency of the claim.) A May 2016 DBQ reflects the Veteran's report that he has increased pain and swelling with overuse, and that any repetitive use causes more pain and swelling. He also reported problems with his grip. He did not report flare-ups. Upon examination, he had range of motion of the MCP from 0 to 90 degrees, PIP from 10 to 80 degrees, and DIP from 0 to 50 degrees for the ring finger. He had range of motion of the little finger for the MCP from 0 to 90 degrees, PIP from 10 to 90 degrees, and DIP from 0 to 60 degrees. There was evidence of pain with use, and tenderness on palpation. There was no additional loss of function or motion after repetitive use testing. He had full muscle strength with grip. The examiner found that the Veteran would not be able to do a job that required repetitive lifting with the right hand above 10-15 pounds. A September 2020 DBQ reflects that the Veteran has normal grip, and a slight "swan neck" type of deformity of the ring finger. The Veteran reported that if he hammers or makes repetitive motions, the finger will swell. Upon examination, the Veteran had all normal ranges of motion. There was no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. There was evidence of pain with use of hand. However, upon repetitive use testing, there was no additional loss of function or range of motion. In addition, the Veteran denied flare-ups. The Veteran had full muscle strength. However, the examiner also noted that if the Veteran's work required him to maintain a grip while lifting, using a hanger, or using his hands heavily, he would need some temporary reassignment (i.e., adjustments will be needed in repetitive motion as they will contribute to development of worsening of the hand condition). The Board also notes, however, the Veteran had full range of motion and grip strength with no objective evidence of pain, to include with active and passive motion, passive, and in non-weight bearing. Based on the foregoing, a higher rating is not warranted. The evidence is against unfavorable ankylosis as defined by the regulation. In his NOD, the Veteran asserted that referral for extraschedular rating is warranted as the schedular evaluation does not contemplate his level of disability which has caused him marked interference with employment. The Board disagrees. Referral for a rating on an extra-schedular basis is not warranted in the present claim. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111(2008), affd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.32 1(b)(1 For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, pain, decreased or abnormal excursion, strength, speed, coordination, flare-ups, or endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints, in particular, the Rating Schedule specifically contemplates factors such as weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained of factors such as reduced grip strength, weakness, and less range of motion, these complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The first Thun element compares a Veteran's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Because, here, the first prong of the Thun three-part test is not satisfied, there is no need to discuss whether the second and third prongs are met since all must be satisfied to warrant referring this claim for extra-schedular consideration. (Regardless, his disability has not been shown to have caused marked interference during the rating period or required hospitalization) 4. Entitlement to initial ratings in excess of 10 percent prior to April 16, 2013, and in excess of 20 percent since April 16, 2013, for lumbosacral strain The Veteran's spine disability is evaluated under DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, Codes 5235-5242, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, with 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 warranted when there is 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 rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. (As of February 7, 2021, there are changes to the rating criteria used to evaluate musculoskeletal disabilities including those affecting the spine. Code 5242 now concerns degenerative arthritis, degenerative disc disease other than IVDS (also, see either Code 5003 or 5010), and Code 5243 for IVDS now indicates to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Code 5242 for all other disc diagnoses.) Prior to April 16, 2013 (rated as 10 percent disabling) The Veteran would be entitled to at least a 20 percent rating if he had forward flexion 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 An August 2010 VA examination report reflects that the Veteran reported usual pain of a 5 out of 10, but will occasionally have a flare up of 8 out of 10 which occurs once a week and is usually brought about by prolonged walking, bending, or performing housework. The flare-ups last two days. There were no incapacitating episodes. Upon examination, he had forward flexion to 85 degrees, extension 20 degrees, bilateral lateral flexion, and bilateral lateral rotation to 30 degrees. There was no further loss of function after repetitive use testing. Thus, most of the time, the Veteran had moderate pain and range of motion that exceeded that which would be required for a higher rating. He also did not have or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. From April 16, 2013 (rated as 20 percent disabling) The Veteran would be entitled to a 40 percent rating if he had forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. An April 2013 DBQ reflects that the Veteran did not report flareups that impact the function of the spine. Upon examination, he had flexion to 60 degrees with objective evidence of pain at 60 degrees. He had extension to 20 degrees with painful motion beginning at 20 degrees. He had 25 degrees of bilateral lateral flexion and bilateral lateral rotation with objective evidence of pain at the endpoint. After repetitive use testing, there was no loss of range of motion. The examiner found that he would have less movement than normal, excess fatigability, pain, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. A May 2016 DBQ reflects that the Veteran did not report flare-ups of the back but feels that he is limited with bending and stopping and lifting the legs into a truck or shower. Upon examination, he had forward flexion from 0 to 70 degrees, extension from 0 to 20 degrees, bilateral lateral flexion from 0 to 30 degrees, and bilateral lateral rotation from 0 to 30 degrees. There was evidence of pain with range of motion testing and with weight bearing. There was no additional loss of function or range of motion after respective use testing. An August 2017 DBQ reflects an antalgic gait due to low back pain. A September 2020 DBQ reflects that the Veteran reported pain and stiffness that interferes with walking long distances. He denied any flare-ups. Upon examination, he had forward flexion from 0 to 80 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 25 degrees, and bilateral lateral rotation from 0 to 30 degrees. Pain was noted on rest and with weight bearing. There was no additional loss of function or range of motion after repetitive use testing, and none was anticipated after repeated use over time. Passive range of motion for the back could not be performed or was not medically appropriate. The evidence is against a finding that the Veteran has had ankylosis of the spine or forward flexion of the thoracolumbar spine to 30 degrees or less. To the contrary, the evidence supports that he has a much greater degree of flexion. There is no probative evidence that his flexion would be limited to 30 degrees or less after repetitive use or during the majority of the time during a flare-up. The evidence is also against a finding of incapacitating episodes as defined by VA regulation. An "incapacitating episode" is defined as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a , Code 5243, Note (1). Thus, increased ratings are not warranted. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Codes 5235-42, Note (1). The examination reports reflect that the Veteran does not have bowel or bladder impairment due to his spine disability. Moreover, in an April 2020 unappealed and final decision, the Board denied increased ratings for bilateral lower extremity radiculopathy. For these reasons and bases, an increased rating and/or a separate rating is not warranted. Conclusion of Increased Rating Claims Finally, the Board has considered whether the Veteran is entitled to a total disability based on individual unemployability (TDIU). A claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2020 decision, the Board remanded the issue of entitlement to a TDIU prior to August 22, 2017 for further development; the issue has a different docket number from the present claims. Subsequent to the remand, the RO granted a TDIU effective from December 15, 2015. The Veteran has contended that he became too disabled to work on December 14, 2015, which was the last date that he worked full-time. The evidence does not indicate, based on his VA Form 21-8940, that the work was not substantial gainful employment. Thus, no further action is warranted. The issue of entitlement to a TDIU prior to December 15, 2015 has not been reasonably raised by the record. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). According to 38 C.F.R. § 3.310, service connection may be granted as well, on a secondary basis, for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 5. Entitlement to service connection for hives, to include as secondary to service-connected disability In his November 2010 NOD, the Veteran contended that he has episodes of hives when he is under stress or experiencing mental health symptoms. The Veteran is competent to state that he has welts, marks, or raised areas on his skin because this is readily observable even to the naked eye. Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA clinical records reflect that the Veteran has complained that when he is anxious, he gets hives, and that he takes Benadryl to treat them (e.g., September 2002, October 2002, July 2007, and December 2009). A September 2020 DBQ reflects that the Veteran's "stress-induced" hives are quiescent, likely related to anxiety, and less likely than not incurred or caused by an assault in service. In an April 2021 rating decision, the RO granted service connection for unspecified anxiety disorder. Thus, service connection on a secondary basis is warranted for hives because the evidence supports that it is at least as likely as not that the Veteran gets hives when anxious. See 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 6. Entitlement to service connection for a seizure disorder The Veteran contends that he has seizures due to a traumatic head injury in service in 1984 and that he "hid the fact he had seizures" and concedes they were not diagnosed until 1994 or 1995. A December 1994 Yavapai Regional Medical Center record reflects that the Veteran reported having four or five seizures since 1981, with episodes of profuse sweating, inability to stand, sometimes self-abuse behavior, but no loss of consciousness. One recent episode was with his arms and hand shaky and feeling totally drained after the episodes. The EEG report reflects an impression of normal EEK. It was noted that "no epileptiform activity was identified and no focal slowing was present." September 2002 VA clinical records reflect that the Veteran was getting blood drawn, when he reported that he felt dizzy "like I do when I have a seizure". It was noted that the Veteran reported that he had not had a seizure in many years. The Veteran was given three glasses of juice and an "Ensure" bar after he reported that he had been fasting for the lab work. The Veteran reported having had seizures in the past when he was using speed, marijuana, and alcohol. Although the Veteran described his symptoms as a "seizure" or "panic attack", the September 2002 records reflect an assessment of vasovagal faint. A December 2009 VA clinical record reflects that the Veteran reported that he has seizures "years ago". A June 2010 VA clinical record reflects that the Veteran reported that he has a history of seizures but has not had a full seizure since he has been receiving treatment at VA (which has been since at least 1985). A September 2020 DBQ reflects that the Veteran has not been diagnosed with a seizure disorder, and that the Veteran reported that he had not had a seizure in the past 25 years since he stopped drinking alcohol; it was also noted that the seizures had never been witnessed. He reported having a number of minor seizures over the past six months. The examiner opined that it is less likely as not that the Veteran has a seizure disorder related to the Veteran's traumatic brain injury with depressive disorder. The examiner also noted that there is no objective evidence to support a diagnosis of a seizure disorder. The Board finds that service-connection for a seizure disability is not warranted. Although the Veteran has reported minor psychomotor seizures during the pendency of his claim, there is no objective or probative (i.e., competent and credible) evidence to support a seizure disability and he is not competent to diagnosis one (i.e., he cannot state that it is a seizure as opposed to feeling faint after having blood drawn, or having a panic attack). See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). A cornerstone of service connection is a current disability (either a probative diagnosis or symptoms which reaches the level of functional impairment of earning capacity). See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders v. Wilkie 886 F.3d 1356, 1368 (Fed. Cir. 2018). In this case, the Board acknowledges the Veteran's subjective reports of seizures and the clinical finds that he was faint after not eating or drinking and having blood drawn; however, there is not probative evidence that he has a disability manifested by seizures or a similar disability which is as likely as not causally related to service and/or a service-connected disability. Moreover, any panic attacks would be contemplated in his service-connected acquired psychiatric disability. For these reasons and bases, service connection is not warranted. 7. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disability. A November 2011 VA DBQ for mental disorders reflects that the Veteran reported chronic sleep impairment; he reported difficulty falling asleep most nights due to racing thoughts and high anxiety, and that he had periods of excessive sleeping. A May 2020 DBQ reflects that the Veteran reported that when he has anxiety, he has problems with sleep. The opinion of the examiner was that the Veteran does not meet the diagnostic criteria for a sleep disability, and his various mental health symptoms, to include sleep problems, meet diagnostic criteria for unspecified anxiety disorder. The Veteran's service-connected acquired psychiatric disability is rated under DC 9413. The General Rating Formula for Mental Disorders lists chronic sleep impairment as an example of a symptom which should be considered when rating a Veteran for a service-connected mental disability. A separate rating (and award of service connection) is not allowable as that would constitute impermissible pyramiding because the rating criteria specifically contemplates chronic sleep impairment. The Board has also considered whether the Veteran has sleep apnea for which he may be seeking service connection; however, the evidence is against a diagnosis of sleep apnea. In sum, service connection is not warranted because the most probative evidence is against a sleep disability. 8. Entitlement to service connection for a respiratory disability The Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD). In his November 2010 NOD, he contended that while he was serving in Ft. Leonard Wood, Missouri during the winter, his lungs were "burned" by extremely cold weather and he suffered "acute respiratory disease" and was hospitalized. He states that he now has problems with his lungs. However, at a September 2020 examination, he reported that he began experiencing respiratory problems in 1981 while being exposed to tear gas, and that his lung function over the past five years has improved since he quit smoking. He reported that he is 100 pounds overweight and believes that weight loss will improve his dyspnea on exertion as well. (His February 2009 statement for PTSD reflects tear gas in training and acute respiratory disability.) The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion that he has a current respiratory disability related or attributable to anything that occurred during his time in the military. In addition, he himself, has given various possible etiologies; thus, indicating that he is unsure as to the etiology. The Veteran's service treatment records (STRs) reflect that he was diagnosed with acute respiratory disease in January 1982 and hospitalized for three days. He was noted to have a sore throat, a fever, cough, headache, and earache. His chest was clear. The STRs are unremarkable for a chronic respiratory disability. In addition, any contention as continuity of symptoms is less than credible given the record as a whole. The Veteran's February 1984 Report of Medical History for periodic purposes reflects that he stated that his present health was good. He denied asthma, shortness of breath, pain or pressure in the chest, or a chronic cough. Seven months later, his September 1984 Report of Medical Examination for separation from service (Expiration of Term of Service (ETS)) reflects that his lungs and chest were clear. His corresponding Report of Medical History reflects that he reported that he was in good health except for a hole in his eardrum and a deformed finger. He again denied asthma, shortness of breath, pain or pressure in the chest, or a chronic cough. Two months later, his November 1984 Report of Medical History for enlistment in the National Guard again reflects that he denied asthma, shortness of breath, pain or pressure in the chest, chronic cough. Two months later, a January 1985 VA examination record (for ear complaints) reflects that the Veteran's respiratory system was "perfectly normal". The Board finds that if the Veteran had chronic respiratory difficulties in service, he would have reported it rather than specifically deny it. In addition, the Board finds that his STRs would likely note chronic problems/treatment/complaints to include that it would have been found on examination in September 1984; however, the only notation was of an "acute" problem in January 1982, more than two years prior to separation from service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Thus, the Board finds that the Veteran's contentions as to chronicity lack credibility. More than a decade after separation from service, in 1991, the Veteran underwent several x-rays after a motorcycle accident. An October/November 1981 record notes that an x-ray showed an essentially normal chest and that his "lungs show no evidence of acute infiltrate; the report is unremarkable for COPD or any lung abnormality. An October 1995 VA examination report reflects that the Veteran reported that he is in "good health except for chronic ear disease and painful and dysfunctional 4th and5th fingers of the right dominant hand." Upon review of his system, he reported no cough, shortness of breath, or chest pain. On examination, his respirations were normal. More than two decades after his separation from active service, an August 2009 VA clinical record notes the Veteran has an assessment of "Tobacco Abuse/Likely COPD"; he was encouraged to stop smoking. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). A June 2010 VA clinical record notes the Veteran "smokes and has inhalers for COPD". A July 2013 VA clinical record notes that the Veteran has COPD/Bronchitis and is at high risk due to rheumatoid arthritis and current smoking. A September 2014 VA clinical record reflects that the Veteran has COPD/tobacco Abuse, and that he quit smoking last week and was encouraged to remain tobacco free. A September 2020 DBQ examiner, who considered the Veteran's contention as to tear gas in service, found that the medical literature appears to be silent for something that would be quite anomalous. The examiner found it less likely as not that that the Veteran had a current disability casually related to service. The Board acknowledges that the examiner noted that the Veteran had been diagnosed with COPD in 2013, whereas the clinical records note a likely diagnosis in 2009 and a diagnosis in 2010; however the Board find that six year difference de minimus, given the lengthy period between service and 2009. The Board also notes that, while the examiner did not cite specifically to the Veteran's January 1982 diagnosis of an acute respiratory disease, the examiner opined that it is less likely than not the Veteran's current disability was incurred in or caused by a specific in-service illness to include respiratory symptoms during service. The clinical records indicate the Veteran's COPD is more likely owing to his chronic tobacco abuse (smoking). Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders including COPD. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). And. indeed, for a claim, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. There is no probative opinion (based on a review of the pertinent records and with an adequate rationale) tending to support the notion that it is as likely as not the Veteran has a current respiratory disability that was caused or aggravated by his service. For these reasons and bases, service connection is not warranted. 9. Entitlement to service connection for a cervical spine disability In his NOD, the Veteran asserted that he injured his neck/cervical spine in the same July 1984 incident when he injured his right hand. He reported that his neck was hurt when he was tackled by several soldiers. A July 1984 STR reflects that the Veteran sought treatment for a black eye and stated that he had been playing football. He also reported ear pain. The report is entirely unremarkable for a neck/cervical spine complaint. The Board finds that if he had neck pain, he would have reported it and it would have been noted in the STRs. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Veteran's February 1984 Report of Medical History for periodic purposes reflects that he stated that his present health was good. Seven months later, his September 1984 Report of Medical Examination for separation (ETS) reflects that his neck and spine were normal upon clinical evaluation. His corresponding Report of Medical History reflects that he reported that he was in good health except for a hole in his eardrum and a deformed finger. Two months later, his November 1984 Report of Medical History for enlistment in the National Guard again reflects his statement that he was in good health. He complained of a broken finger in August 1984, but no complaints of the cervical spine/neck were noted. Two months later, a January 1985 VA examination record (for ear complaints) reflects that the Veteran's neck was normal. It was noted to be negative for problems upon inspection and palpation. A March 1995 record notes a normal neck. An August 1997 VA clinical record notes a congenital C4-5 disk space narrowing with partial fusion of the posterior portion of the intervertebral disk, and the loss of normal cervical lordosis. The Veteran reported he has some discomfort up the arm and over the right neck. This is more than a decade after separation from active service. An October 1998 record notes that the Veteran had right arm pain with intermittent shooting pain from his neck down his arm. His neck range of motion was slightly decreased with right lateral rotation. He was assessed with right cervical radiculopathy. A May 1999 VA examination report reflects that the Veteran has been working as a carpenter and a construction worker which included landscaping and then had been retrained in computer graphics. He reported that he has some weakness in his grip and pain in his right hand. It was noted that he does not have neck pain, but that he had a probable old cervical spine injury at C4-C5 not causing any of the ulnar nerve problem he was experiencing. If the Veteran had chronic neck pain since service, it seems entirely reasonable that he would have reported it. Rather, it appears that the 1997 complaint was acute as he did not have pain in 1999. A March 2003 VA clinical record reflects that the Veteran reported that he had had three weeks of neck pain with his in-service 1984 injury with no fractures or injury except for the ring finger. A July 2007 VA clinical record notes that the Veteran had prior neck pain and then an injury at work in October [2006] when he had to restrain a patient. He was reported to have been on worker's compensation until July 2007. An August 2007 record reflects his report of neck pain for the past 1-2 years. An October 2009 VA clinical record reflects that March 2009 radiographs show longstanding partial C4-C5 fusion (unclear if acquired or congenital) that was evidence in 2002, and mild spondylosis and mild foraminal narrowing of right C6-C7 area. It was noted that his chronic neck pain appears to be soft tissue in origin, although he does have some spondylosis. A December 2011 VA clinical record reflects neck pain for two days in duration. The Veteran reported that when driving patients, he had difficulty even turning the key in the car. He reported pain all around the right shoulder joint but also leading up to the right side of the spine. A March 2009 VA clinical record reflects an impression of incomplete segmentation C4-C5. A September 2020 DBQ reflects a diagnosis of congenital partial C4-C5 fusion, mild spondylosis, and mild foraminal narrowing of right C6-C7. The Veteran reported that he injured his cervical spine while working on a bridge. The Board notes that this differs from his contention that he injured in July 1984 when he was playing sports. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) The 2020 examiner found that it was less likely as not that the Veteran had a cervical spine disability casually related to service. The examiner noted that the Veteran's STRs were negative for a neck/cervical spine condition, and the earliest evidence of a spine disability was many years after separation from service. In sum, the STRs do not reflect a neck/cervical spine injury and he was noted to have a normal neck/cervical spine when examined in service. The earliest complaint is not for many years after service and the probative clinical opinion is against a nexus between a current disability and service. Thus, service connection is not warranted. 10. Entitlement to an acquired psychiatric disability other than unspecified anxiety disorder and/or depressive disorder In an October 2014 rating decision, the RO granted service connection for depressive disorder. Subsequent to the Board's August 2018 remand and the Veteran undergoing examination, the RO, in an April 2021 decision, also granted service connection for unspecified anxiety disorder. A December 2011 DBQ reflects a diagnosis of depressive disorder, alcohol abuse in full remission. An August 2017 DBQ reflects a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The examiner noted that the Veteran has been previously diagnosed as having PTSD and bipolar disorder, but all his symptoms appear to be caused by pain levels, changes in function, and limited mobility. A May 2020 DBQ reflects that he does not meet the diagnostic criteria for posttraumatic stress disorder (PTSD). The most probative evidence does not indicate that the Veteran has bipolar disorder which may be causally related to service and/or a service-connected disability. In addition, although he was diagnosed with adjustment disorder with mixed anxiety and depressed mood, this would seem to be encompassed in his two already service-connected disabilities. Thus, the Board finds that further development is not warranted, and the Veteran's service-connected disabilities adequately encompass his acquired psychiatric disabilities which may be related to service and/or a service-connected disability. Conclusion of Claims for Service Connection The Board finds that any contention as to continuity of symptoms of seizures, a respiratory disability, or a neck/cervical spine disability since service is less than credible given the record as a whole. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). In the present situation, the Veteran's STRs are unremarkable for seizures or neck complaints and note only an acute respiratory condition. Moreover, the Veteran was in good health, denied pertinent complaints, and/or had normal examination findings upon separation from active service. Thereafter, when enlisting in the National Guard, he denied pertinent complaints. He also worked in manual labor as a carpenter and construction worker, without any clinical records noting complaints for many years. The evidence as a whole weighs against continuity of symptoms. Finally, he is not competent to provide etiologies for his current disabilities, and there is no probative opinion based on review of the pertinent evidence and with an adequate rationale with supports service connection. There is also no probative opinion that the Veteran has a sleep disability separate and apart of his service-connected acquired psychiatric disability., or that he has a current acquired psychiatric disability other than depressive disorder or anxiety which is as likely as not caused or aggravated by service or a service-connected disability. For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). New and Material Evidence 11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for substance abuse. Historically, in a November 1995 decision, the RO considered and denied the Veteran's claim for service connection for substance abuse. He did not timely appeal that earlier denial of this claim, so it became a final and binding decision based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim that has been previously considered, denied, and not appealed therefore, has a final and binding determination concerning it, will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The Veteran's claim was initially denied on a direct service connection basis because his substance abuse was considered willful misconduct. Since then, he has been granted service connection for a TBI with depressive disorder and unspecified anxiety disorder. However, the evidence still does not indicate that he has a current substance abuse disorder that is related to, or that was aggravated by, his service and/or a service-connected disability. The Board is mindful that, when a disability causes a Veteran to abuse drugs or alcohol such as to relieve, mask or alleviate the symptoms associated with a disability, often a mental disorder (i.e., a "coping mechanism"), service connection may be warranted. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But, in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Importantly, the Veteran has not alleged that he has had a substance abuse problem during the pendency of his current claim, and the evidence does not indicate such. To the contrary, the evidence reflects, and the Veteran concedes, that he has not used drugs or alcohol during the pendency of this current claim. A November 2011 DBQ indicates the Veteran had ongoing issues with alcohol and drugs since high school with intermittent periods of sobriety but was now sober for 17 years after treatment. An August 2017 DBQ contains the Veteran's statement that he has been sober for 22 years. A May 2020 DBQ explains the Veteran's childhood history was significant for substance use, to include huffing since age 5. It was noted that he continued to have substance abuse issues in service, but that his alcohol abuse was in remission. A July 2020 VA clinical record reflects that the Veteran had a history of alcohol, cocaine, and methylamphetamine abuse, but had been sober and had abstained from any substance (i.e., illicit drugs, medical cannabis, illicit cannabis) since 1994. There was also no evidence of aberrant use of prescriptions. The Board finds, despite the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010) that new and material evidence has not been received. As noted above, a requirement for service connection is a current disability. There is no evidence of record which indicates that the Veteran has a current substance abuse disability (during the pendency of his claim) which is causally related to, or aggravated by, service and/or a service-connected disability. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.