Citation Nr: 18146012 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-02 784 ATE: October 30, 2018 ORDER Service connection for a urinary disorder (previously claimed as an enlarged prostate with urinary tract problems) is granted. Service connection for a skin disorder (other than service connected atopic dermatitis and flat nevi), claimed as shingles and rash, is denied. Service connection for a bilateral elbow disorder, to include as secondary to the service-connected cervical spine disability, is denied. Service connection for a bilateral shoulder disorder, to include as secondary to the service-connected cervical spine disability, is denied. A rating in excess of 20 percent for degenerative disc disease and arthritis of the cervical spine is denied. A rating in excess of 20 percent for left upper extremity radiculopathy is denied. A compensable rating for right upper extremity radiculopathy prior to March 29, 2010, and in excess of 20 percent thereafter, is denied. For the rating period prior to November 23, 2016, a 20 percent rating, but no higher, for degenerative changes of the lumbar spine is granted. For the rating period beginning November 23, 2016, a rating in excess of 20 percent for degenerative changes of the lumbar spine is denied. A 10 percent rating, but no higher, for residuals of a right knee meniscectomy is granted. REMANDED Entitlement to service connection for a psychiatric disorder. Entitlement to separate rating(s) for right and left lower extremity radiculopathy. Entitlement to a compensable rating for atopic dermatitis and flat nevi is remanded. Entitlement to a total rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with chronic microscopic hematuria, which is secondary to medication used to treat his service-connected gastroesophageal reflux disease (GERD) disability; the Veteran’s prostatitis is not related to service. 2. The Veteran’s shingles treated in service had resolved; there is no objective evidence of recurrence or residual. 3. The Veteran does not have a skin disability manifested by a rash (other than the already service-connected dermatitis disability). 4. The Veteran’s bilateral elbow and bilateral shoulder disorders are not related to service and are not caused or aggravated by the service-connected cervical spine disability. 5. The Veteran’s cervical spine disability has not more nearly approximated forward flexion limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. 6. Symptoms of associated with right and left upper extremity radiculopathy most nearly approximated mild incomplete paralysis of the upper radicular group. 7. The Veteran’s right upper extremity radiculopathy symptoms first manifested in March 2010. 8. For the rating period prior to November 23, 2016, the Veteran’s lumbar spine disability more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, to include after repetitive use. 9. For the entire rating period on appeal, the Veteran’s lumbar spine disability does not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankyloses of the entire thoracolumbar spine. 10. The Veteran’s right knee disability has been manifested by normal range of motion, without lateral instability or recurrent subluxation, but with symptomatic removal of the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for service connection for a urinary disorder, (previously claimed as an enlarged prostate with urinary tract problems), as secondary to the service-connected GERD disability are met. 38 U.S.C. §§ 1101, 1110, 5107, (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. The criteria for service connection for a skin disorder (aside from service connected atopic dermatitis and flat nevi), to include shingles and any other rash, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for a bilateral elbow disorder, to include as secondary to the service-connected cervical spine disability, are not met. 38 U.S.C. §§ 1101, 1110, 5107, (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 4. The criteria for service connection for a bilateral shoulder disorder, to include as secondary to the service-connected cervical spine disability, are not met. 38 U.S.C. §§ 1101, 1110, 5107, (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The criteria for a rating in excess of 20 percent for the cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 6. The criteria for a rating in excess of 20 percent for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, DC 8710 (2017). 7. The criteria for a compensable rating for right upper extremity radiculopathy prior to March 29, 2010, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, DC 8710 (2017). 8. For the rating period prior to November 23, 2016, the criteria for a rating in excess of 20 percent, but no higher, for lumbar spine degenerative changes are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 9. For the rating period beginning November 23, 2016, the criteria for a rating in excess of 20 percent for lumbar spine degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 10. The criteria for a 10 percent rating, but no higher, for residuals of a right knee meniscectomy are met. 38 C.F.R. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to August 1985, and from November 1990 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal (except for an increased rating for dermatitis) were previously remanded by the Board for further development in October 2015. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Urinary Disorder The Veteran maintains that he has a urinary disorder that has resulted in urinary tract symptoms. The Veteran has indicated that these issues may be related to an enlarged prostate. The medical evidence of record shows that the Veteran has been diagnosed with chronic microscopic hematuria. See November 2016 VA urinary tract examination report. The Veteran has also been found to have prostatitis, which was last treated with antibiotics in 2013. See private treatment records from Dr. Arnkoff at Comprehensive Urology. As noted in a November 2016 VA medical opinion, the Veteran’s prostatitis was less likely than not related to service. The examiner indicated that the there was no documentation of a urological or prostate condition during service. Moreover, the Board finds that the Veteran’s prostatitis first occurred many years following service separation. See November 2016 VA urinary tract examination report (Veteran noted that he was first treated for prostatitis in 2003); see also February 2013 treatment records from Dr. Arnkoff (noting that prostatitis had been present for several years). For these reasons, the Board finds that the evidence of record weighs against a finding that the Veteran’s prostate disorder was incurred in service or otherwise related to service. That notwithstanding, the preponderance of the evidence demonstrates that the Veteran’s chronic microscopic hematuria is secondary to his service-connected GERD disability. See November 2016 VA medical opinion (opining that the Veteran’s chronic microscopic hematuria was multifocal and that Pantoprazole (medication used for GERD) was as likely as not the cause of the Veteran’s hematuria.). There is no contradictory medical evidence of record. Therefore, the Board finds that the preponderance of the competent evidence of record weighs in favor or the Veteran’s claim. As such, the Board finds that service connection for chronic microscopic hematuria as secondary to the service-connected GERD disability is warranted. Shingles and Rash The Veteran has filed claims for service connection for shingles and for a skin rash; however, a review of the evidence of record does not show that he currently has shingles or any residual rash. The Veteran has already been awarded service connection for atopic dermatitis and flat nevi. The Veteran underwent a VA skin examination in November 2016. The examiner indicated that the Veteran was diagnosed with shingles (left trigeminal area) during Desert Storm service (1991), and that after treatment, the condition resolved. According to the Veteran, he has had no recurrence of shingles subsequent to service and no chronic residuals. The remaining evidence of record has been reviewed, but does not show any current diagnosis of shingles or any residuals associated with the Veteran’s previously diagnosed shingles. Accordingly, the first element of the claim has not been established as the evidence of record demonstrates that the Veteran does not have a current diagnosis of shingles, to include any residuals therefrom. The Veteran has not met his burden of establishing the existence of a current disability. “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, service connection for shingles is denied. As it pertains to the Veteran’s claim for service connection for a skin rash, the Board notes that the Veteran has already been awarded service connection for dermatitis. Pursuant to the decision herein, the Board has also denied service connection for shingles. The remaining evidence of record, to include the November 2016 VA skin examination report, does not show that the Veteran has any other skin disorders manifested by a rash. As such, service connection for a skin rash is denied. Bilateral Elbow and Shoulder Disorders The Veteran generally contends that his bilateral elbow and bilateral shoulder disorders are related to service, or alternatively, secondary to the service-connected cervical spine disability. Service treatment records are negative for any complaints, diagnoses, or treatment for an elbow or shoulder disability. The Veteran’s Reports of Medical Examination completed at service separation (first and second periods of active duty service) in 1985 and 1991 show a normal clinical evaluation of the Veteran’s upper extremities. The evidence also includes November 2016 VA examination reports where the Veteran was diagnosed with degenerative arthritis of both elbows, left elbow lateral epicondylitis, right rotator cuff tendonitis with tear, left labral tear, and osteoarthritis of both shoulder joints. During the evaluation, the Veteran reported intermittent elbow and shoulder pain since the mid-1990s (i. e., after service separation). The examiner reviewed the claims file and then opined that the Veteran’s bilateral elbow and bilateral shoulder disorders were not related to service. In this regard, it was noted that there was no documentation of any specific elbow trauma, shoulder injury, or chronic elbow or shoulder condition in service as well as no documentation in the immediate civilian years following service discharge. Regarding secondary service connection, the examiner opined that the elbow and shoulder disorders were neither caused nor aggravated by the Veteran’s cervical spine disability. In support of these opinions, the examiner noted that the cervical spine was not an etiological condition for the elbow or shoulder conditions as they were separate and independent pathophysiological conditions and belonged to different anatomical regions. There was also no evidence of any aggravation of the elbow or shoulder conditions due to the cervical spine disability. The remaining evidence of record has been reviewed, but it does not show any relationship between the Veteran’s elbow and/or shoulder disorders and service or to his service-connected cervical spine disability. The Board also considered the Veteran’s statements regarding his belief that his elbow and shoulder disorders are related to service or to a service-connected disability. As a lay person, the Veteran is competent to relate observable symptoms that may be associated with an elbow or shoulder disability, such as pain, but he does not have the requisite medical knowledge, training, or experience to be provided an opinion as to the etiology of his disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Joint disorders, including arthritis, are medically complex processes because of their multiple possible etiologies, require specialized testing to diagnose (such as MRI or x-ray), and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Further, the etiology of the Veteran’s elbow and shoulder disorders are complex medical etiological questions involving internal and unseen system processes unobservable by the Veteran. For the reasons set forth above, and based on the evidence of record in conjunction with the applicable laws and regulation, the Board finds that the weight of the competent, credible, and probative evidence is against a finding of relationship between the Veteran’s elbow and shoulder disorders and service or to a service-connected disability. The Board finds that a preponderance of the evidence is against the claims, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Disability Rating Criteria - Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Cervical Spine The Veteran maintains that his cervical spine disability is more severe than what is contemplated by the currently assigned 20 percent disability rating. The Veteran’s cervical spine disability is rated under Diagnostic Code 5242 for degenerative arthritis of the spine. Under the General Rating Formula, the following ratings are either currently assigned or available: 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 40 percent is assigned for unfavorable ankyloses of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankyloses of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran was afforded a VA examination in August 2008. During the evaluation, the Veteran reported difficulty moving his neck to the left due to pain. Turning the neck also caused numbness in the little finger of the left hand. The Veteran was able to grip and use the left hand. Range of motion testing showed cervical forward flexion limited to 30 degrees with pain and stiffness. In a March 2011 VA spine examination, the examiner noted that the Veteran had normal posture and normal head position. There was no ankyloses of the cervical spine and forward flexion was limited to 40 degrees. Repetitive use testing showed objective evidence of pain, but no additional limitation of motion. The examiner also indicated that the Veteran had “mild” peripheral neuropathy of the right upper extremity. Private treatment records from Dr. Fantich dated in July 2011 show that the Veteran complained of upper extremity radicular symptoms “during the past 4 years.” Dr. Fantich indicated that a review of several MRI reports showed a large herniated disc at C5-C6 and C6-C7, which placed pressure on the cervical cord and existing nerve roots, right greater than left. EMG reports were also positive for radiculopathy in the right upper extremity. April 2010, June 2012, and January 2013 treatment records from Dr. Rosenberg show a diagnosis of right upper extremity radiculopathy confirmed by MRI and EMG reports. The Veteran was afforded another VA cervical spine examination in November 2016. During the evaluation, the Veteran reported that his neck pain was a 3 out of 10, with 10 being the most severe pain. Flare-ups were noted to occur once or twice a week, lasting a few hours to days on average. During these flare-ups, pain was noted to increase to a 6-7. The Veteran also reported radiating pain to both upper extremities with tingling and numbness. Range of motion testing showed flexion of the cervical spine limited to 35 degrees. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. During flare-ups, the examiner noted that the Veteran’s range of motion would be limited to 30 degrees in flexion. The examiner noted that the Veteran had subjective signs (pain and paresthesia) of both upper extremities, but indicated that there were no objective clinical signs of peripheral neuropathy. The Veteran was also not provided an EMG as he denied the test. Based on the clinical findings regarding range of motion of the cervical spine, the Board finds that a rating in excess of 20 percent for the cervical spine disability is not warranted as forward flexion has never been reduced to 15 degrees or less, and there has never been a finding of favorable ankylosis of the entire cervical spine. The Board has specifically considered the functional impairment caused by the service-connected cervical spine disability. The Veteran has reported pain and reduced motion in the cervical spine, to include while twisting his neck. That notwithstanding, the most recent VA examination indicated no additional loss of motion after repetitive use testing or functional loss. The clinical evidence reflects that, despite the Veteran’s pain, which the Board finds is present with all motion of the cervical spine, the Veteran was able to attain the reported ranges of motion. The Board emphasizes that the presence of pain, even with all motion, is not itself probative of entitlement to a rating higher than 20 percent for the cervical spine disability. While it is clear from the record that there is limited motion and painful motion, evaluations in excess of the minimum compensable rating (10 percent) must be based on demonstrated functional impairment to the appropriate degree. Unlike the assignment of a minimum compensable rating, which can be based on painful motion to any degree, the question for resolution here is not whether pain limits motion of the cervical spine, but whether that limitation would decrease motion to the degrees specified for a higher rating. Here, the evidence simply does not demonstrate impairment to the level necessary for the next higher 30 percent rating regarding the cervical spine. For the reasons discussed above, the Board concludes that a rating higher than 20 percent under the General Rating Formula is not warranted for the cervical spine disability for the rating period on appeal. Lumbar Spine The Veteran maintains that his currently diagnosed lumbar spine disability is more severe than what is contemplated by the currently assigned 10 percent and 20 percent ratings. The Board finds that the Veteran’s lumbar spine disability, diagnosed as degenerative joint disease has been appropriately rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a , Diagnostic Code 5242. Under Diagnostic Code 5242 (degenerative arthritis of the spine), a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankyloses of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankyloses of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankyloses of entire spine. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Upon review of the evidence of record, the Board finds that the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees throughout the entire rating period on appeal. In a November 2016 VA spine examination, the examiner specifically indicated that, after repetitive use testing, the Veteran’s lumbar spine was limited to 60 degrees. Notably the prior VA examination report, conducted in August 2008, indicated that the Veteran had dull pain continuously, but was not experiencing any pain at the time of examination. Although range of motion testing on the day of the August 2008 examination showed forward flexion limited to 90 degrees, there was no discussion by the examiner regarding any limitation of motion during flare-ups. Moreover, a following March 2011 VA examination report did not include range of motion testing of the thoracolumbar spine. The Board finds that the Veteran’s lumbar spine symptoms have remained relatively consistent throughout the rating period on appeal. The Board also finds it unlikely that the Veteran’s lumbar spine disability suddenly worsened on the day of the November 2016 VA examination, particularly in light of his longstanding history of symptoms that included pain and stiffness since service. For these reasons, and in consideration of the Veteran’s pain and functional impairment during repetitive use, the Board finds that a 20 percent rating more nearly approximates the Veteran’s symptoms for the period prior to November 23, 2016. The Board next finds that a rating in excess of 20 percent is not warranted for the entire rating period on appeal. The evidence of record, to include the most recent November 2016 VA spine examination airport, does not show forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes as a result of IVDS. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted. Neurological Abnormalities In addition to consideration of the orthopedic manifestations of the lumbar and cervical spine disabilities, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran is currently in receipt of a 20 percent rating (under Diagnostic Code 8710) for left upper extremity radiculopathy effective July 18, 2008. He has also been awarded a 20 percent rating for right upper extremity radiculopathy effective March 29, 2010. Under Diagnostic Code 8710, a 20 percent rating is assigned for mild incomplete paralysis of a major or minor joint. A 30 percent rating is assigned for moderate incomplete paralysis of a minor joint. A 40 percent rating is assigned for moderate or severe incomplete paralysis of a major joint as well as severe incomplete paralysis of a minor joint. See 38 C.F.R. §§ 4.124, 4.124a, DCs 8510, 8710. The Board finds that, at worst, the Veteran has been found to have mild radiculopathy of the upper extremities. See March 2011 VA spine examination. Notably, the Veteran denied undergoing EMG testing in the most recent examination, which may have assisted the Veteran in obtaining a higher rating. Regarding the right upper extremity, the Board notes that the Veteran was not awarded a separate rating for radiculopathy for the entire period on appeal (i. e., the effective of the award is March 29, 2010). The Board finds that the Veteran was not diagnosed with right upper extremity radiculopathy prior to this date. For example, a March 29, 2010 private treatment record indicated that the Veteran started having numbness in the right hand four days prior. An MRI in April 2010 confirmed a diagnosis of radiculopathy of the right upper extremity. The medical evidence prior to March 2010 shows complaints of numbness and tingling in the left upper extremity, but not the right. For these reasons, the Board finds that higher ratings and earlier effective dates for the Veteran’s right and left upper extremity radiculopathy disabilities are not warranted. Right Knee The Veteran is currently in receipt of a noncompensable rating for the entire initial rating period on appeal. He essentially contends that a higher rating is warranted. Under Diagnostic Code 5003, degenerative arthritis must be established by x-ray evidence. Evaluations for degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If, however, evaluation on this basis results in a noncompensable evaluation, the veteran shall be awarded a 10 percent rating for each major joint or group of minor joints affected by limitation of motion, to be combined but not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. Diagnostic Code 5260 addresses limitation of motion with respect to flexion. Flexion limited to 45 degrees warrants a 10 percent evaluation. A 20 percent rating requires flexion limited to 30 degrees. The maximum rating of 30 percent is reserved for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 10 degrees merits a 10 percent evaluation. A 20 percent rating is reserved for extension limited to 15 degrees, while a 30 percent rating is reserved for extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent evaluation. The maximum 50 percent rating is awarded when there is extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2017). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. The VA General Counsel has interpreted that separate disability evaluations are assigned where a veteran has both a compensable (10 percent or higher) limitation of flexion and a compensable limitation of extension of the same knee pursuant to Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-04. Separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5237, 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 09-04 (September 17, 2004). Upon review of the evidence of record, the Board finds that the Veteran’s right knee disability warrants a 10 percent rating due to symptoms associated with his right knee meniscus condition. Private treatment records in 2001 show that the Veteran was diagnosed with a torn meniscus and underwent arthroscopic surgery in November 2011. See also November 2016 VA knee examination (examiner noted that the Veteran was status-post partial medial meniscectomy with residual pain. Therefore, as the Veteran has been shown to have meniscus repair in the right knee, the Board finds that a 10 percent rating for the right knee is warranted under Diagnostic Code 5259 for the entire rating period on appeal. Under Diagnostic Code 5259, a 10 percent rating is the maximum assignable under Diagnostic Code 5259 for post-operative cartilage removal. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The evidence demonstrates that the Veteran has a history of meniscectomy on his right knee. As the Veteran’s right meniscus has been surgically repaired and is not dislocated as contemplated under Diagnostic Code 5258, this code does not apply. In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Codes 5260 and 5261 for limitation of motion in flexion and extension do not provide for higher ratings as the Veteran was found to have full range of motion in the right knee during the 2016 VA examination. Further, Diagnostic Code 5256 does not apply, as there is no evidence of knee ankyloses of the knee. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. The evidence does not show that the Veteran has undergone a knee replacement, therefore Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. Moreover, the Veteran’s scars have not been shown to be panful, unstable, do not cover an area of at least 39 square inches, and do not result in limitation of motion or loss of function. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7804 (2017). For these reasons, the Board finds that a 10 percent rating, but no higher, for residuals of a right knee meniscectomy is granted. REASONS FOR REMAND Psychiatric Disorder The Veteran was afforded a VA mental disorders examination report in October 2016. At that time, the Veteran was diagnosed with adjustment disorder with anxiety. It was further noted that the Veteran did not have a diagnosed TBI. The October 2016 is inadequate as it is factually inaccurate. The Veteran has been awarded service connection for a TBI with headaches and memory loss. As the Veteran has been found to have a psychiatric disorder, the examiner should address whether the disorder is a behavioral/emotional manifestation of the Veteran’s TBI. Lower Extremity Radiculopathy Unlike the Veteran’s upper extremity radiculopathy, which has been well-documented in private treatment records, the Veteran’s bilateral lower extremity symptoms have not been objectively diagnosed. Specifically, the November 2016 VA examination indicated that the Veteran had radicular pain and other symptoms of radiculopathy in the lower extremities; however, the examiner stated that the right and left lower extremities were “not affected” by radiculopathy. It was also noted that the Veteran refused an EMG test; as such, a formal diagnosis was not provided. Moreover, the sensory examination was normal and the straight leg raise was negative. Clarification is needed to determine whether the Veteran has a diagnosis of radiculopathy of the lower extremities associated with his lumbar spine disability. The Veteran is advised that an EMG test may prove beneficial to his claim. Atopic Dermatitis and Flat Nevi The Veteran was afforded a VA skin examination in November 2016. He was subsequently granted service connection with a noncompensable rating for atopic dermatitis and flat nevi in a January 20017 rating decision. In his March 2018 substantive appeal, the Veteran’s representative indicated that the Veteran had “found a significant expansion of the skin condition since the last examination.” For these reasons, the Board finds that a new examination is required to assess the current severity of the Veteran’s skin disability. TDIU In an August 2018 statement, the Veteran’s representative indicated that the Veteran had recently left his job due to his service-connected TBI disability and associated residuals. See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009) (holding that a claim for a TDIU is part of a rating issue when employability is expressly raised by a veteran or reasonably raised by the record during the rating appeal). On remand, the Veteran must be provided a notice letter and an application for entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Send the Veteran a notice letter with respect to his claim of entitlement to a TDIU. 2. Provide the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, for completion and return to the AOJ. 3. Return the October 2016 VA mental disorders examination report to the examiner that conducted the examination for the purpose of obtaining an addendum to the examination report. If the examiner is not available, the claims file must be available to another appropriate examiner for the requested opinions. The examiner is asked to address the following: (a.) State whether the Veteran’s diagnosed adjustment disorder with anxiety is as likely as not a residual of TBI or whether it is a separate disability. The examiner is asked to address whether it is possible to distinguish between the symptoms of any such unassociated diagnosed psychiatric disability found, from any symptoms or diagnoses that are attributable to the TBI, to include any symptoms related to cognitive, behavioral/emotional or physical manifestations of a TBI. If the symptoms cannot be distinguished, the examiner should state so in their opinion, and identify the indistinguishable symptoms. (b.) The addendum report must include a complete rationale for any opinions expressed. 4. Afford the Veteran a neurological VA examination to assist in determining the nature and severity of his claimed bilateral lower extremity radiculopathy. The examiner should address the following: (a.) State whether the Veteran has a diagnosis of radiculopathy of the lower extremities. (b.) If so, identify the nerve that is involved and indicate whether there is complete paralysis. If incomplete paralysis, the examiner should indicate if the severity is mild, moderate, or severe. 5. Afford the Veteran a VA skin examination to assist in determining the severity of his atopic dermatitis and flat nevi. (Continued on the next page)   6. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel