Citation Nr: 1800598 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-18 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to an initial compensable disability rating for symptoms related to the service-connected traumatic brain injury (TBI) which is not already rated under a separate diagnostic code. 4. Entitlement to an initial disability rating in excess of 10 percent for the service-connected cervical spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to October 2011. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in December 2013. A transcript of this testimony is associated with the claims file. The Veteran subsequently testified at a Board hearing in June 2015 at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is also associated with the claims file. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed chronic right or left knee disability. 2. Since the effective date of service connection, the Veteran's TBI residuals have included cognitive impairment manifested by no more than moderately impaired visual spatial orientation; and, no more than mild functional impairment in the category of memory, attention, concentration and/or executive functioning. 3. Since the effective date of service connection, the Veteran's service-connected cervical spine disability has been manifested by muscle spasm and guarding severe enough to result in abnormal spinal contour; neither forward flexion of the cervical spine limited to 15 degrees or less, nor ankylosis has ever been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for the assignment of an initial 40 percent rating, but not higher, for the service-connected TBI residuals, on the basis of Level 2 cognitive impairment, not otherwise classified, have been more nearly approximated since the effective date of service connection. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (2017). 4. The criteria for the assignment of an initial 20 percent rating, but not higher, for the service-connected cervical spine disability have been more nearly approximated since the effective date of service connection. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Veteran filed her initial claim of service connection prior to discharge from service, pursuant to the Benefits Delivery at Discharge (BDD) program. The Veteran received notice of how to substantiate a claim for benefits in conjunction with her submission of her BDD claim. See, e.g., Veteran's April 2011 Pre-Discharge Notice Response acknowledging receipt of VA's notice about the evidence and information needed to support her claim. Accordingly, VA's duty to notify is satisfied. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Further, the Veteran's claims with respect to the TBI residuals and cervical spine arise from a disagreement with the initial disability ratings that were assigned following those grants of service connection. Once service connection is granted, the claim is substantiated, and additional notice is not required; and, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records (STRs), personnel records, and VA treatment records have been associated with the record. The Veteran has provided testimony at an RO hearing before a DRO, as well as at a Board hearing before the undersigned. As there is no allegation that either of the hearings provided to the Veteran were deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran seeks service connection for right and left knee disabilities. She asserts that in-service knee injuries resulted in a chronic current bilateral knee condition manifested by crepitus and aching pain behind both knee caps. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303. The Veteran's service treatment records (STRs) confirm that the Veteran was treated for a left knee contusion in January 2005 when her knee hit a pointed object on a Humvee. She was placed on temporary profile for two weeks. She was treated again for left knee pain in April 2005, when she presented to sick call with edema, continuous popping, and stiffness in the joint. She was again placed on temporary profile for two weeks, and received physical therapy for the left knee in May 2005. She also received physical therapy for overuse of both knees in December 2005. Records from 2010 note a history of knee tendinitis and chondromalacia patella. In June 2011, a Medical Evaluation Board (MEB) found the Veteran unfit for retention in the Army due to a cervical spine disability and residuals of a TBI. The report did not list a chronic knee disability diagnosis of either knee at that time, even though the Veteran reported a history of knee pain on a March 2011 Report of Medical History. There was no x-ray evidence of arthritis or fracture, no visible joint effusion, and the soft tissues were unremarkable on x-ray. See May 2011 VA pre-discharge examination report. The May 2011 examiner acknowledged the presence of crepitus, and the Veteran's reports of intermittent moderate aching behind the patellae after impact; however, the examiner concluded that there was no basis upon which to find a chronic disabling condition because the Veteran's pain did not result in any functional limitation of either knee. There was no pain on motion and the range of motion of both lower extremities was normal. Further, the Veteran denied flare-ups of knee pain. Accordingly, the examiner found no basis upon which to diagnose a chronic knee condition of either knee. Post-service medical records do not show a currently diagnosed chronic right or left knee disability. Moreover, at her June 2015 hearing before the undersigned, the Veteran testified that she had not received a post-service knee diagnosis or treatment for either knee; and, admittedly, she testified that she hoped to establish service connection for knee disabilities just in case she develops arthritis at a later date. Transcript, p. 9. The undersigned VLJ explained to the Veteran at the hearing that in order to substantiate her claim for service connection, there must be evidence of a current disability. The VLJ further suggested that if the Veteran had any such evidence, that she should submit it into the record. Transcript, pp. 13-14. The Veteran testified that she had not received treatment for her knees since service; and, to date, the Veteran has not provided any evidence of current diagnosis or treatment for a knee disability. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, while the Veteran is certainly competent to report knee pain, her lay statements describing such pain do not support a later diagnosis by a medical professional. Additionally, the Veteran is not competent to diagnose a chronic condition such as arthritis, as this requires objective findings on x-ray. The Board acknowledges that the Veteran was treated in service for knee pain associated with overuse, such as a tendinitis-type injury. However, no such findings were present at the time of the May 2011 pre-discharge examination, and that examiner found no current disability. Furthermore, the Veteran has, admittedly, not been treated for knee pain since her service discharge. Accordingly, the element of a current disability is not established solely by the Veteran's lay statements in this case. Furthermore, although the Veteran argues that her knee pain has continued since service, her argument of continuity of symptomatology since service must fail because she has not been diagnosed with a disability considered "chronic" under 38 C.F.R. § 3.309(a) such as arthritis with respect to either knee. According to the Federal Circuit's holding in Walker v. Shinseki, service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). In summary, the Veteran injured her left knee in service and was subsequently treated for bilateral knee pain on overuse of the knees; however, no chronic knee condition was diagnosed at the time of the May 2011 pre-discharge examination, or at any time after that, including at the time of the Veteran's discharge. As such, the Veteran does not have a currently diagnosed chronic right or left knee disability. A claim for service connection requires medical evidence showing that the veteran currently has the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. Under 38 U.S.C. § 1110, it is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In light of the foregoing, the preponderance of the evidence is against a finding service connection and the claims of service connection for right and left knee disabilities must be denied. III. Increased Ratings The Veteran seeks a compensable disability rating for cognitive impairment as a residual of the service-connected TBI. She also seeks an initial rating in excess of 10 percent for the service-connected cervical spine disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). TBI Service connection for TBI residuals has been established. The Veteran's TBI residuals include a diagnosed psychiatric disorder, tinnitus, headaches, and a binocular dysfunction. These symptoms are separately rated under the appropriate diagnostic codes pursuant to the regulatory guidance on how to rate TBI residuals at 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injuries and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). Here, in accordance with Diagnostic Code 8045, the Veteran has already been rated for major depressive disorder with panic disorder and intermittent explosive disorder under Diagnostic Code(s) 9412-9434. Additionally, the Veteran's headaches are rated under Diagnostic Code 8100, her tinnitus is rated under Diagnostic Code 6260, and her binocular dysfunction is rated under Diagnostic Code(s) 6090-6012. The Veteran has not expressed disagreement with the initial ratings assigned under the above diagnostic codes; however, she maintains that she also suffers from cognitive impairment not otherwise specified in the above rating criteria, for which she asserts a separate compensable evaluation under Diagnostic Code 8045 is warranted. As explained under 38 C.F.R. § 4.124a, Diagnostic Code 8045, cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Under Diagnostic Code 8045, cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Under Diagnostic Code 8045, subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, as is the case here, the residuals with a distinct diagnosis (major depressive disorder with panic disorder and intermittent explosive disorder, headaches, tinnitus, and binocular dysfunction) have already been properly separately evaluated under other diagnostic codes rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, irrespective of whether those diagnoses are based on subjective symptoms. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is "total," then the overall percentage evaluation is based on the highest facet. A 70 percent evaluation is assigned if "3" is the highest level of evaluation for any facet. If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is "1." Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0." There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation based on the same manifestations is to be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, separate evaluations for each condition should be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1). The table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" provides evaluations (numeric designations of 0, 1, 2, 3, and total) for the following 10 facets: Impairment of memory, attention, concentration, executive functions; Impairment of Judgment; Impairment of Social Interaction; Impairment of Orientation; Impairment of Motor Activity; Impairment of Visual Spatial Orientation; Subjective Symptoms; Neurobehavioral Effects; Communication; and, Consciousness. In addition to the Veteran's separately rated psychiatric disorder (which includes the neurobehavioral symptoms), headaches, tinnitus, and binocular dysfunction, the Veteran testified at her June 2015 Board hearing that she also has memory impairment and visual spatial disorientation as a result of the in-service TBI, which she believes warrant a separate compensable rating under Diagnostic Code 8045. Transcript pp. 18, 22. According to the May 2012 rating decision, the Veteran's neurobehavioral effects include occupational and social impairment with reduced reliability and productivity, due to symptoms such as suicidal ideation, panic attacks more than once a week, anxiety, chronic sleep impairment, depressed mood and mild memory loss. Although memory loss is listed as a symptom under the General Formula for Mental Disorders at 38 C.F.R. § 4.130, the psychiatric evaluations of record do not necessarily associate the Veteran's memory loss, and other cognitive impairment, as a manifestation of her psychiatric disability. Rather, the evidence of record shows that the Veteran has experienced behavioral changes since the TBI, which include depression, anxiety, and intermittent explosive episodes; and, that the Veteran has been diagnosed with major depressive disorder with panic disorder and intermittent explosive disorder, which is currently rated by VA as 50 percent disabling, irrespective of any simultaneously identified cognitive impairment. In this regard, the Board finds that the Veteran's psychiatric disorder, is manifested by symptoms warranting the assignment of a 50 percent rating under the General Schedule for Rating Mental Disorders, even without consideration of any memory loss. See 38 C.F.R. § 4.130. In other words, the Veteran's TBI-related neurobehavioral effects, alone (which include frequent panic attacks, depressed mood, anxiety, sleep impairment, and intermittent suicidal ideation without plan), still warrant the assignment of the 50 percent rating currently assigned, irrespective of any cognitive neurologic deficit in the facet of memory impairment. In light of the foregoing, the Board finds that the assignment of a separate rating for cognitive impairment does not violate the rule against pyramiding at 38 C.F.R. § 4.14 (assigning more than one evaluation based on the same manifestations) because manifestations of the psychiatric behavioral effects are clearly separable from the cognitive impairment. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). As the Board finds that the Veteran's manifestations of cognitive impairment in the facets of memory impairment and spatial disorientation are clearly separable, the assignment of a separate rating under Diagnostic Code 8045 is appropriate, particularly given that the neurocognitive evaluations have not specifically identified the Veteran's memory impairment and spatial disorientation as manifestations of her diagnosed depressive disorder with panic disorder and intermittent explosive disorder. Moreover, the Veteran did not disagree with the initial 50 percent rating assigned under the General Formula for Rating Mental Disorders; rather, she asserts that the symptoms of memory impairment and spatial disorientation are clearly separable and therefore warrant separate ratings. The Board agrees based on evidence set forth below. The record confirms that the Veteran has had deficits in the areas of memory and auditory and visual processing, and visual/spatial disorientation since the in-service TBI. See in-service neurological evaluations dated March 2011, April 2011; and July 2011 summary indicating the need for special adaptations including a GPS system for local navigation even within well-known places. In addition, while a pre-TBI neuropsychiatric evaluation from 2006 notes that the Veteran had a diagnosis of attention deficit disorder (ADD), the report also reflects that the Veteran's attention, memory, and executive functioning were intact; and, that her visual and spatial performance was largely intact at that time. It was only her ability to copy a complex figure that was mildly impaired primarily due to poor organization and planning; there were no perceptual inaccuracies. Her overall functioning was within normal limits. Further, the STRs do not show that the ADD caused any significant cognitive impairment or any interference with her duties prior to the TBI. The Veteran was a successful soldier prior to the head injuries; however, she was found unfit for service after the head injuries. Further, in comparing the Veteran's overall functioning prior to the head injuries to the neuropsychiatric testing following the 2010 head injuries, there is a clear indication that the Veteran suffered cognitive impairment as a result of those injuries. See November 2010, April 2011, and July 2011 neurological reports. In particular, an April 2011 neurological rehabilitation outpatient progress report notes that [since the TBI] the Veteran continued to evidence significant difficulty processing auditory and visual information under time constraints, with background noise, and when interrupted. Visuospatial skills continued to be impaired for special orientation and map reading. Also, a March 2011 disability evaluation report notes that the Veteran's overall condition had worsened since August 2010 and there were no improvements seen in the Veteran's ability to concentrate and focus on tasks. Notably, the report specifically indicates that assigned tasks that previously were promptly executed now take large quantities of time to complete. Likewise, at her June 2015 Board hearing, the Veteran testified that since the head injury, she has been unable to find her way around familiar places, gets lost easily, and cannot go anywhere without a GPS system, even to places that she often frequents. Transcript. pp. 19-20. Additionally, the Veteran's contentions are supported by lay statements submitted by family, friends, and co-workers who describe a significant decline in her cognitive impairment after the 2010 head injuries. Accordingly, separately ratable cognitive impairment due to the TBI is established, and the only remaining question is the extent of that impairment. Under Diagnostic Code 8045, the impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. According to the November 2010, April 2011, and July 2011 neurologic evaluations, there was objective evidence of no more than mild impairment in memory, auditory and visual processing, resulting in mild functional impairment in executive function. This is consistent with the Veteran's assertions, and this finding corresponds to a numeral designation of "2." Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired 0 May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. According to the evidence summarized above, the Veteran usually gets lost in unfamiliar surroundings, has difficulty reading maps and following directions, and relies primarily on the use assistive devices such as GPS. The objective findings support the Veteran's assertions in this regard. This symptomatology corresponds to moderate impairment in the facet of visual spatial orientation, and warrants the numeral designation of "2." As the Veteran is able to manage the use of GPS, moderately severe impairment is not demonstrated. Numerical designations are also provided for the 8 other facets of cognitive impairment and other residuals of TBI not otherwise classified, including impairment of judgment, impairment of social interaction, impairment of orientation, impairment of motor activity, and impairment of communication, as well as for subjective symptoms and neurobehavioral effects; however, the medical evidence of record shows that there is either no impairment in these areas, or, as noted above, any such impairment is already considered in the separate ratings assigned for tinnitus, headaches, binocular dysfunction, and Depressive disorder with panic disorder and intermittent explosive disorder under the General Rating Formula for Mental Disorders. See 38 C.F.R. §§ 4.75, 4.79, 4.87, 4.124a, 4.130. Where, as here, the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent. Thus, for the reasons discussed above, the Board finds that the Veteran is entitled to a disability evaluation of 40 percent, but no higher, under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" because no facet was classified at an impairment level of "3" during any part of the rating period on appeal. Thus, a 40 percent rating is granted for the TBI residuals not otherwise classified under Diagnostic Code 8045 for entire period covered by this claim, but a rating greater than 40 percent is not warranted for any part of the appeal period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Cervical Spine The Veteran seeks a rating in excess of 10 percent for the service-connected cervical spine disability. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Ratings under the General Formula are made 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. The disabilities of the spine that are rated under the General Formula include cervical strain (Diagnostic Code 5237). According to the General Formula, as it pertains to the cervical spine, a rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine. A rating of 30 percent is assigned for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 rating of 10 percent is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). At a May 2011 VA pre-discharge examination, the Veteran described her symptoms as constant moderate aching and intermittent severe spasms at the base of the cervical spine, with radiating pain into the bilateral scapulae. The Veteran was prescribed cyclobenzaprine (generic for Flexeril) for spasms, but reported that it was only moderately effective. The examination report also notes that she previously tried cervical traction, trigger point injections, and chiropractic care to alleviate pain and spasms. The Veteran reported that her cervical spine disability had a severe effect on her ability to exercise, travel, do chores and engage in recreation; and, that it prevented her from engaging in sports. On examination, the Veteran could flex the cervical spine to 45 degrees, and extend the cervical spine to 25 degrees. Right and left lateral flexion was 40 degrees each side, and rotation was 70 degrees to the right and 75 degrees to the left. According to the examiner, there was no objective evidence of pain on motion or following repetitive use; and, there was no additional limitation following three repetitions. Although the Veteran reported that she has increased pain and limited motion during flare-ups, as described above, the examiner did not estimate how much additional limitation occurred during flare-ups; and, importantly, when assigning a disability rating for orthopedic disabilities, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran reported that she had flare-ups of increased neck pain 3 times per month, lasting a couple of days each time. During a flare-up, the Veteran reported that she does not bend or twist her neck because of the pain. Her statements in this regard are considered competent and credible. Moreover, a private MRI of the cervical spine from November 2011 noted a mild reversal of lordosis. Additionally, treatment records from March 2013 note that the Veteran had a diagnosis of cervical facet joint syndrome. She described a constantly aching, sometimes grabbing, pain that seemed to stay local to the posterior neck region. The Veteran denied any significant associated pain radiating to the bilateral upper extremities. She reported that looking up (extension) caused more pain than looking down (flexion), and that is consistent with the range of motion testing in May 2011. A September 2013 MRI of the cervical spine confirmed early multilevel degenerative disease with mild to moderate degrees of foraminal narrowing C4/C5, C5/C6, and C6/7; and, notably, there was fluid and edema about the left C4/5 facet which suggested active arthropathy. The Veteran underwent cervical radio frequency ablation (RFA) in September 2013 with some improvement in her neck pain and mobility. A November 2013 physician noted that the RFA of the cervical facets helped somewhat; however, she still continued to have baseline pain at rest, and worse with extension. The examiner suggested there may be an element of cervical muscle weakness and posture issues which could be preventing further improvement of pain. In a November 2013 addendum report, the physician noted that the Veteran had a "definite component of postural instability, with a very forward head carriage (resulting in more compression through the posterior elements) and far rounded shoulders." This is consistent with the November 2011 MRI finding of reversed lordosis. Significantly, at her June 2015 Board hearing, the Veteran testified that she takes Flexeril and Methocarbamol daily because of neck spasms. Transcript, pp. 16-17. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Her statements have been consistent with the medical evidence of record, and are probative for resolving this appeal. The evidence of record does not show that the Veteran's cervical spine disability warrants a rating in excess of 10 percent solely on the basis of limitation of motion, as flexion has never been limited to 30 degrees or less; and, the combined range of motion of the cervical spine has never been shown to be limited to 170 or less. Admittedly, as noted above, the Veteran's limitation of extension is more problematic than her cervical flexion, but the General Formula does not provide for a higher rating based on limitation of extension alone. Instead, limitation of extension is only considered in the context of the combined range of motion, which, as noted above, is not limited to 170 or less. However, it does not appear that the Veteran's range of motion testing at the time of the May 2011 VA examination was accomplished during a flare-up, and the Veteran has reported additional pain on motion during such flare-ups. Furthermore, the Veteran describes spasms of pain which are only somewhat controlled with daily muscle relaxers (Flexeril). Although muscle spasms were not appreciated at the May 2011 VA examination, the Veteran's competent reports of muscle spasms are supported by the clinical evidence showing that the Veteran is prescribed a medication specifically targeting muscle relaxation (Flexeril). Moreover, according to the MRI findings in 2011, the Veteran had a mild reversal of lordosis; and, according to a September 2013 MRI, there were objective findings to account for the Veteran's complaints of pain and spasm. Furthermore, the November 2013 VA clinic report specifically notes an abnormal posture. When this evidence is taken together, the Board finds that the overall disability picture more nearly approximates that of cervical spine flare ups manifested by muscle spasm severe enough to result in an abnormal spinal contour, including reversed lordosis. In this regard, the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when, as here, those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Accordingly, and in resolving all doubt in favor of the Veteran, the criteria for the assignment of a 20 percent rating under the General Formula for the service-connected cervical spine disability are more nearly approximated. The criteria for the assignment of a rating in excess of 20 percent for the service-connected cervical spine disability are not met or approximated. The evidence does not show, and the Veteran does not contend, that forward flexion of the cervical spine is limited to 15 degrees or less, even during a flare-up. Further, ankylosis of the cervical spine has never been demonstrated, and the Veteran does not have objective evidence of neurological impairment. The Veteran was diagnosed with degenerative disease of the cervical spine pursuant to findings from a 2013 MRI. However, the Veteran does not have associated neurological impairment, and does not contend that her cervical spine disability results in incapacitating episodes of intervertebral disc syndrome such that a rating higher than 20 percent would be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Finally, the record shows that the Veteran has experienced some intermittent relief of neck pain following various procedures such as chiropractic treatment, steroid injections, and ablations; however, the overall condition has remained fairly stable since service, and is not shown to be any more, or less severe than as currently rated. Accordingly, the assignment of an initial 20 percent rating, but not higher, is warranted for the service-connected cervical spine disability for the entire period covered by this claim. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. A separate initial rating of 40 percent, but not higher, for the service-connected TBI residuals of cognitive impairment not otherwise classified, is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial rating of 20 percent, but not higher, for the service-connected cervical spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs