Citation Nr: 18155372 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-43 654 DATE: December 4, 2018 ORDER Entitlement to service connection for skin growths is denied. Restoration of the 20 percent disability evaluation for service-connected lower cervical spine somatic dysfunction with paraspinal myofascial pain syndrome (cervical spine disability) is granted, effective June 19, 2014. Restoration of the 70 percent disability evaluation for service-connected anxiety, not otherwise specified (NOS) with posttraumatic stress disorder (PTSD) symptoms is granted, effective January 10, 2017. Entitlement to an evaluation in excess of 70 percent for service-connected anxiety disorder, NOS with PTSD symptoms prior to February 5, 2015, and beginning April 1, 2015, is denied. Entitlement to an evaluation in excess of 10 percent for service-connected chronic upper thoracic strain/somatic dysfunction paravertebral myofascial pain syndrome (thoracic spine disability) is denied. Entitlement to an evaluation in excess of 20 percent for service-connected lower cervical spine somatic dysfunction with paraspinal myofascial pain syndrome (cervical spine disability) is denied. Entitlement to an evaluation in excess of 10 percent for service-connected chronic right ankle anterior talo-fibula strain with progressive degenerative joint disease (right ankle disability) is denied. Entitlement to an effective date prior to January 9, 2014, for the grant of a 70 percent rating for service-connected anxiety disorder, NOS with PTSD symptoms, is denied. Entitlement to an effective date prior to January 9, 2014, for the grant of a 10 percent rating for service-connected right ankle disability, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence is against a finding that the Veteran has a current disability related to skin growths. 2. The reduction in the disability rating for the Veteran’s service-connected cervical spine disability from 20 percent to 10 percent, effective June 19, 2014, was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 3. The reduction in the disability rating for the Veteran’s service-connected anxiety disorder, NOS with PTSD symptoms from 70 percent to 50 percent, effective January 10, 2017, was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 4. The Veteran’s service-connected thoracic spine disability has not been manifested by forward flexion 60 degrees or less or combined range of motion less than 120 degrees. 5. The Veteran’s service-connected cervical spine disability has not been manifested by forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. 6. For the periods prior to February 5, 2015, and beginning April 1, 2015, the Veteran’s service-connected anxiety disorder, NOS with PTSD symptoms, has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 7. The Veteran’s service-connected right ankle disability has not been manifested by marked limitation of motion. 8. On January 9, 2014, the RO received the Veteran’s claim for a higher rating for his service-connected anxiety disorder, NOS with PTSD symptoms; a July 2014 rating decision assigned January 9, 2014, as the effective date for a 70 percent rating for the anxiety disorder, NOS with PTSD symptoms. 9. It is not factually ascertainable that within the one-year period preceding January 9, 2014, the Veteran’s anxiety disorder, NOS with PTSD symptoms, was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 10. On January 9, 2014, the RO received the Veteran’s claim for a higher rating for his service-connected right ankle disability; a July 2014 rating decision assigned January 9, 2014, as the effective date for a 10 percent rating for the right ankle disability. 11. It is not factually ascertainable that within the one-year period preceding January 9, 2014, the Veteran’s right ankle disability was manifested by moderate limitation of motion. 12. The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment; throughout the period the Veteran has been substantially gainfully employed, performing full-time work. CONCLUSIONS OF LAW 1. The criteria for service connection for skin growths have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The reduction from 20 percent to 10 percent for the service-connected cervical spine disability was improper, and the 20 percent rating for cervical spine disability is restored, effective June 19, 2014. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.44 (2017). 3. The reduction from 70 percent to 50 percent for the service-connected anxiety disorder, NOS with PTSD symptoms disability was improper, and the 70 percent rating for anxiety disorder, NOS with PTSD symptoms is restored, effective January 10, 2017. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.44 (2017). 4. The criteria for an evaluation in excess of 10 percent for service-connected thoracic spine disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59,4.71a, Diagnostic Code 5237 (2017). 5. The criteria for an evaluation in excess of 20 percent for service-connected cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59,4.71a, Diagnostic Code 5237 (2017). 6. The criteria for an evaluation in excess of 70 percent for service-connected anxiety disorder, NOS with PTSD symptoms, prior to February 5, 2015, and beginning April 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9413 (2017). 7. The criteria for an evaluation in excess of 10 percent for service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.71(a), Diagnostic Codes 5003-5271 (2017). 8. The criteria for an effective date prior to January 9, 2014, for a 70 percent rating for anxiety disorder, NOS with PTSD symptoms, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 9. The criteria for an effective date prior to January 9, 2014, for a 10 percent rating for right ankle disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 10. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to December 2005 and from December 2005 to September 2009 and had active duty for training (ACDUTRA) from March 1997 to September 1997. The Board takes jurisdiction of the TDIU claim as inextricably intertwined with the claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Skin growths The Veteran filed a January 2014 claim for service connection for skin growths. See January 2014 VA Form 21-526b. As an initial matter, the Board notes that the Veteran is service-connected for scars associated with Methicillin-resistant Staphylococcus aureus (MRSA). Thus, the MRSA scars will not be considered as part of his current skin growth claim. While the Veteran has reported skin growths during the course of this appeal, the medical evidence does not reflect any current clinical diagnosis of skin growths or other related skin condition. The Veteran is competent to relate symptomatology; however, he is not competent to diagnose an underlying skin disability because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Review of the medical evidence of record during the appeal period does not reflect a diagnosis, ongoing treatment, or symptomatology of skin growths. Moreover, treatment records do not support that the Veteran has complained of skin growths. As such, the Board finds that the Veteran does not have a current diagnosis of skin growths, and thus, no current skin disability. In coming to this conclusion, the Board is mindful of Saunders v. Wilkie in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). While the Veteran has reported skin growths, the Board finds that any pain from alleged skin growths has at no time been so severe as to cause functional impairment. Moreover, the Veteran has not alleged any functional impairment due to his skin growths and he has been gainfully employed, full-time throughout the appeal period. Based on the foregoing, the Board does not find that any pain associated with the Veteran’s skin growths rises to the level of a disability under Saunders. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no doubt to be resolved; the claims for service connection for skin growths is denied. Rating Reductions Congress has provided that a Veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2012). When an AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Initially, the Board notes that the reduction from 20 percent to 10 percent for service-connected cervical spine disability in the July 2014 rating decision did not result in a reduction of the Veteran’s overall compensation and the reduction from 70 percent to 50 percent in the March 2017 rating decision did not result in a reduction of the Veteran’s overall compensation. Thus, the provisions of 38 C.F.R. 3.105(e) are inapplicable. Notwithstanding that the procedural steps of 38 C.F.R. § 3.105(e) do not apply in this case, a rating reduction is not proper unless a veteran’s disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). Turning to the propriety of a reduction, certain procedural protections apply to stabilized disability ratings that “have continued for long periods at the same level (5 years or more).” See 38 C.F.R. § 3.344(c) (2017). At the time of the AOJ’s July 2014 and March 2017 rating decisions, neither the Veteran’s 20 percent evaluation for cervical spine disability nor his 70 percent rating for anxiety disorder, NOS with PTSD symptoms had not been in effect for five years. The use of parentheses in 38 C.F.R. § 3.344(c) suggests that the five-year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). Regulations impose a clear requirement that VA rating reductions be based upon a review of the entire history of a veteran’s disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13 (2017). The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. 1. Cervical spine disability Service connection for a cervical spine disability was granted in a September 2011 rating decision and a 20 percent evaluation was assigned, effective May 12, 2011. A July 2014 rating decision decreased the Veteran’s rating for cervical spine disability from 20 percent to 10 percent, effective June 19, 2014. Therefore, the issue before the Board is whether the Veteran’s cervical spine disability improved as of the July 2014 rating decision. The Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In addition, it must be determined that an improvement in a disability had actually occurred; and that such improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). The Board must consider the entire medical history and apply the preponderance of the evidence standard in its determination. Schafrath, supra; Brown, supra. After reviewing the evidence of record, the Board finds that there is competent and credible evidence that the Veteran’s cervical spine disability had not improved at the time of the July 2014 rating decision. The Board is mindful that, in reducing the disability rating from 20 percent to 10 percent, effective June 19, 2014, the AOJ considered the results of the Veteran’s June 2014 VA examination, which tended to show that the Veteran’s service-connected cervical spine disability did not meet the criteria for a 20 percent disability rating. Crucially, however, the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life. After considering the Veteran’s entire medical history, a preponderance of the evidence does not show a material improvement in the service-connected cervical spine disability. Upon September 2011VA cervical spine examination, the Veteran had forward flexion to 40 degrees; extension to 35 degrees; left side bending to 40 degrees; right side bending to 40 degrees; left rotation to 70 degrees; and right rotation to 70 degrees. There was objective evidence of painful motion. The examiner indicated that there were no additional functional limitations of the cervical spine, including no additional loss of range of motion during flare-ups or secondary to repetitive use of the joint, painful motion, weakness, excess fatiguability, and/or lack of endurance or coordination. Upon June 2014 VA cervical spine examination, the Veteran did not report that flare-ups impact the function of the cervical spine (neck). Initial range of motion testing revealed forward flexion to 35 degrees, with no objective evidence of painful motion; extension to 30 degrees, with no objective evidence of painful motion; right lateral flexion to 30 degrees, with no objective evidence of painful motion; left lateral flexion to 30 degrees, with no objective evidence of painful motion; right lateral rotation to 30 degrees, with no objective evidence of painful motion; and left lateral rotation to 30 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions and he did not have additional limitation of the cervical spine following repetitive-use testing. He had functional loss, functional impairment and/or additional limitation of range of motion of the cervical spine (neck) after repetitive use, described as pain on movement. After considering the entire medical history of the Veteran’s service-connected cervical spine disability, the Board finds that at the time of the July 2014 rating decision, improvement in the Veteran’s cervical spine disability under the ordinary conditions of life and work had not been demonstrated. Throughout the course of the appeal, the service-connected cervical spine range of motion testing results have shown reduced range of motion from September 2011 to June 2014. See September 2011 and June 2014 VA examination reports. Further, the September 2011 VA examination report indicated that there was no objective evidence of painful motion and there were no additional functional limitations of the cervical spine, including no additional loss of range of motion during flare-ups or secondary to repetitive use of the joint, painful motion, weakness, excess fatiguability, and/or lack of endurance or coordination. However, upon June 2014 VA examination, he had functional loss, functional impairment and/or additional limitation of range of motion of the cervical spine (neck) after repetitive use, described as pain on movement. Moreover, the June 2014 VA examiner did not indicate that the Veteran’s cervical spine disability had demonstrated any actual improvement since the September 2011 VA examination. Finally, the Veteran’s statements and testimony over the years indicate that the Veteran’s service-connected cervical spine disability has continued to impact his range of motion and functioning. As VA has failed to meet its burden to demonstrate actual improvement of the Veteran’s cervical spine disability resulting in an improvement in his ability to function under the ordinary conditions of life and work, the Board finds the restoration of a 20 percent disability rating is warranted, effective June 19, 2014. 2. Anxiety disorder, NOS with PTSD symptoms A July 2014 VA rating decision increased the Veteran’s rating for anxiety disorder, NOS with PTSD symptoms from 50 percent to 70 percent, effective January 9, 2014. See July 2014 rating decision. A March 2017 rating decision decreased the Veteran’s rating for anxiety disorder, NOS, with PTSD symptoms, from 70 percent to 50 percent, effective January 10, 2017. Therefore, the issue before the Board is whether the Veteran’s anxiety disorder with PTSD symptoms improved as of the May 2017 rating decision. The Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In addition, it must be determined that an improvement in a disability had actually occurred; and that such improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). The Board must consider the entire medical history and apply the preponderance of the evidence standard in its determination. After reviewing the evidence of record, the Board finds that there is competent and credible evidence that the Veteran’s anxiety disorder, NOS, with PTSD symptoms had not improved at the time of the May 2017 rating decision. The Board is mindful that, in reducing the disability rating from 70 percent to 50 percent, effective January 10, 2017, the AOJ considered the results of the Veteran’s January 2017 examination. However, the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life. After considering the Veteran’s entire medical history, a preponderance of the evidence does not show a material improvement in the service-connected anxiety disorder, NOS, with PTSD symptoms. Upon June 2014 VA mental disorders examination, the Veteran reported that he has been married to his second wife for three years and they have been together for five years. He reported that he and his wife were not getting along and a divorce is pending. The Veteran reported working for Delta Airlines, in ground operations. He worked there for 16 years. He reported that his job was going well, but he has been missing work because he does not want to do anything. Mental status examination of the Veteran revealed he was alert and oriented to person, place, and time. He was casually dressed and well groomed. He interacted in a logical, coherent, and reserved fashion. His observed affect was restricted. The Veteran felt down most days. The Veteran’s speech was normal for rate and volume; he was fairly open; and he was a bit abrupt. The Veteran’s psychomotor activity was mildly restless. He had average insight. The Veteran’s concentration was noted as never being good, he had attention-deficit hyperactivity disorder as a youth. The examiner determined that the Veteran is capable of managing his financial affairs. Upon January 2017 VA examination, the Veteran reported being separated from his wife and living with his parents. He stated he has a no contact order against him with his wife and children. He was currently working for Delta Airlines on the ground services crew where he had been for 19 years. Mental status examination revealed the Veteran was alert and oriented with appropriate grooming and dress. His speech and though content were unremarkable and his affect was appropriate. He did not feel much motivation to do things other than go to work, but denied having difficulty with low energy/fatigue. The Veteran reported having low self-esteem and stated that he has been more negative about his future lately. He endorsed anxiety and some intermittent symptoms of depression including: low mood, feeling worthless, anhedonia, poor hygiene, and low appetite. The Veteran denied manic symptoms; denied obsessive/compulsive symptoms; and denied panic attacks. He reported having difficulty with concentration and memory. The examiner indicated that the Veteran is capable of managing his financial affairs. After considering the entire medical history of the Veteran’s service-connected anxiety disorder, NOS, with PTSD symptoms, the Board finds that at the time of the May 2017 rating decision, improvement in the Veteran’s anxiety disorder, NOS, with PTSD symptoms under the ordinary conditions of life and work had not been demonstrated. Throughout the appeal period, the symptoms associated with the Veteran’s service-connected anxiety disorder, NOS, with PTSD symptoms, have remained consistent. Although the Veteran has worked full-time throughout the appeal period, his reports of lack of motivation and depressed mood have remained consistent. Further, his relationships with his wife and children have deteriorated since his June 2014 VA examination. Finally, the Veteran’s statements over the years indicate that the Veteran’s service-connected anxiety disorder, NOS, with PTSD symptoms has continued to impact his ability to interact with others, especially his wife and children. As VA has failed to meet its burden to demonstrate actual improvement of the Veteran’s anxiety disorder, NOS, with PTSD symptoms resulting in an improvement in his ability to function under the ordinary conditions of life and work, the Board finds the restoration of a 70 percent disability rating is warranted, effective January 10, 2017. Increased Rating Disability ratings are based upon the average impairment of earning capacity as determined by a Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Thoracic spine disability The Veteran filed a January 2014 claim for increased rating for lower back condition. See January 2014 VA Form 21-526b. His thoracic spine disability is currently rated 10 percent disabling under Diagnostic Code 5237. Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242), a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or abnormal spinal contour; a 40 percent rating is warranted for forward flexion of the lumbar spine 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, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings 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. Id. Associated objective neurologic abnormalities are to be rated separately. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. For VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2). Intervertebral disc syndrome is rated under the general formula for rating diseases and injuries of the spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2017). In rating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Upon June 2014 VA thoracolumbar spine examination, the Veteran reported ongoing upper back pain, daily. He reported having moderate pain in the upper back toward the bottom of the neck that increased with cold weather and any repetitive lifting. He denied urinary or bowel complaints or any lower extremity radicular complaints. The Veteran did not report that flare-ups impacted the function of the thoracolumbar spine. Initial range of motion testing revealed forward flexion to 80 degrees, with no objective evidence of painful motion; extension to 20 degrees, with objective evidence of painful motion at 30 degrees; right lateral flexion to 25 degrees, with no objective evidence of painful motion; left lateral flexion to 25 degrees, with no objective evidence of painful motion; right lateral rotation to 25 degrees, with no objective evidence of painful motion; and left lateral rotation to 25 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions and testing revealed forward flexion to 80 degrees, extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. He did not have additional limitation in range of motion of the thoracolumbar spine (back) following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the thoracolumbar spine (back) described as pain on motion. After a review of the evidence discussed above since, the Board finds that the Veteran’s service-connected thoracic spine disability has not been manifested by forward flexion 60 degrees or less, combined range of motion less than 120 degrees, abnormal gait or contour due to muscle spasm, guarding or tenderness, or ankylosis. At his worst, the Veteran’s forward flexion was to 80 degrees. See June 2014 VA examination report. The current symptomatology includes pain, painful motion, and pain increased with lifting; nevertheless, such symptomatology is contemplated in the currently assigned 10 percent disability rating. As a result, a rating in excess of 10 percent is denied for service-connected thoracic spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Next, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In this case, the Board finds the Veteran’s disability picture from his service-connected thoracic spine disability is not more closely approximated by a higher rating based on the presence of additional functional loss based on the criteria set forth in 38 C.F.R. §§ 4.40 4.45, and the holdings in DeLuca, 8 Vet. App. at 206. After a review of the evidence discussed above, the Board finds that the functional equivalent of forward flexion less than 60 degrees, combined range of motion less than 120 degrees, is not shown at any time during the initial appeal period. Such findings are not shown, even when considering the Veteran’s reported symptomatology for the service-connected thoracic spine disability. The Veteran’s reported symptomatology do not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 10 percent for the service-connected thoracic spine disability at any time during the initial appeal period under 38 C.F.R. §§ 4.40, 4.45, and the holdings in DeLuca. Lastly, the Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). Upon June 2014 VA thoracolumbar spine examination, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and did not have any other signs of radiculopathy. Further, he did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). After a review of the evidence discussed above, the Board finds a separate evaluation for any associated objective neurological abnormality associated with the service-connected thoracic spine disability is not warranted in this case. Consideration has been given to assigning staged ratings. However, at no time has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that thoracic spine disability has not significantly changed and a uniform rating is warranted. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v, Derwinski, 1 Vet. App. 49, 53-56 (1990). With regard to a claim for an effective date prior to January 9, 2014, for increased 10 percent rating for thoracic spine disability, the AOJ granted service connection for chronic upper thoracic strain/somatic dysfunction with paravertebral myofascial pain syndrome (claimed as entire back condition) and assigned a 10 percent evaluation, effective May 12, 2011. The Veteran’s 10 percent evaluation has been assigned since the date of the award of service connection. Further, pursuant to the above Order, the Veteran is not entitled to an increased rating for thoracic spine disability. Therefore, there has been no increased rating. Accordingly, there remains no claim on appeal for an effective date prior to January 9, 2014, for an increased 10 percent rating for thoracic spine disability. 2. Cervical spine disability The Veteran filed a January 2014 claim for increased rating for upper back condition. See January 2014 VA Form 21-526b. The Veteran is in receipt of a 20 percent rating under Diagnostic Code 5237. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Based on the evidence, the Board finds that a higher rating is not warranted. Upon June 2014 VA cervical spine examination, the Veteran did not report that flare-ups impact the function of the cervical spine (neck). Initial range of motion testing revealed forward flexion to 35 degrees, with no objective evidence of painful motion; extension to 30 degrees, with no objective evidence of painful motion; right lateral flexion to 30 degrees, with no objective evidence of painful motion; left lateral flexion to 30 degrees, with no objective evidence of painful motion; right lateral rotation to 30 degrees, with no objective evidence of painful motion; and left lateral rotation to 30 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions and he did not have additional limitation of the cervical spine following repetitive-use testing. He had functional loss, functional impairment and/or additional limitation of range of motion of the cervical spine (neck) after repetitive use, described as pain on movement. The Veteran did not have ankylosis of the spine and did not have IVDS. In order to warrant the next higher 30 percent rating, there must be evidence of forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a (2017). At his worst, the Veteran’s forward flexion was to 35 degrees as was consistently demonstrated on VA examination. See June 2014 VA examination report. Although the Veteran had pain on motion, such pain did not functionally limit flexion to 15 degrees or equate to ankylosis of the cervical spine, and any painful motion or pain on use is already contemplated in the assigned 20 percent rating. Further, there was no evidence of ankylosis. He did not report that flare-ups impact the function of the cervical spine (neck). DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board finds that a rating in excess of 20 percent is not warranted. Consideration has been given to assigning a higher rating under Diagnostic Code 5243 for IVDS. In this regard, there is no evidence of IVDS of the cervical spine. See June 2014 VA examination report. The Board has not assigned a separate rating for any neurological impairment related to the cervical spine disability. Significantly, upon June 2014 VA cervical spine examination, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Further, he did not have any other neurologic abnormalities related to a cervical spine (neck) condition (such as bowel or bladder problems due to cervical myelopathy. Without evidence linking a neurological impairment to the cervical spine, an additional rating based on any neurological symptoms is not appropriate. Consideration has been given to assigning staged ratings. However, at no time has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that cervical spine disability has not significantly changed and a uniform rating is warranted. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v, Derwinski, 1 Vet. App. 49, 53-56 (1990). With regard to claim for an effective date prior to January 9, 2014, for increased 10 percent rating for cervical spine disability, having restored the 20 percent evaluation, the Veteran is in receipt of a 20 percent rating, effective May 12, 2011. The Veteran’s 20 percent rating has been assigned since the date of the award of service connection. Further, pursuant to the above Order, the Veteran is not entitled to an increased rating for cervical spine disability. Therefore, there remains no claim on appeal for an effective date prior to January 9, 2014, for a 10 percent rating for cervical spine disability. 3. Right ankle disability The Veteran filed a January 2014 claim for increased rating for right ankle disability. See January 2014 VA Form 21-526b. A July 2014 rating decision increased the Veteran’s rating for chronic lateral right ankle anterior talo-fibular ligament strain with progressive degenerative joint disease from noncompensable to 10 percent, effective January 9, 2014. See July 2014 rating decision. The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected right ankle disability. His symptoms are rated under Diagnostic Codes 5003-5271. 38 C.F.R. § 4.71(a). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71(a). Diagnostic Code 5271 provides that a 10 percent rating is warranted for moderate limitation of motion of the ankle. A 20 percent rating is warranted for marked limitation of motion. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. Id. at Plate II. The Board notes that the words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. Upon June 2014 VA ankle examination, the Veteran reported right ankle discomfort that he rated up to three out of 10 which could increase with prolonged standing and walking. He was diagnosed with chronic lateral right ankle anterior talo-fibular ligament strain and osteoarthritis. The Veteran did not report that flare-ups impacted the function of the right ankle. Range of motion testing revealed right ankle plantar flexion to 40 degrees, with no objective evidence of painful motion and dorsiflexion to 20 degrees or greater, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions and results revealed right ankle plantar flexion to 40 degrees and dorsiflexion to 20 degrees or greater. The Veteran did not have any additional limitation in in range of motion following repetitive-use testing and did not have any functional loss and/or functional impairment of the right ankle. He did not have ankylosis of the ankle, subtalar, and/or tarsal joint. The examiner indicated that the Veteran does not now have nor has he ever had “shin splints”, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has the Veteran had a talectomy (astragalectomy). After careful review, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s right ankle disability. The evidence of record does not demonstrate limitation of right ankle motion to a “marked” degree, as is required for a higher, 20 percent rating, at any time during the appeal period. As noted above, VA examination reports indicate that, at worst, the Veteran’s plantar dorsiflexion has been limited to 40 degrees, and his dorsiflexion limited to 20 degrees. The Veteran did not report that flare-ups impacted the function of the right ankle. He was able to perform repetitive-use testing with three repetitions and did not have any additional limitation in in range of motion following repetitive-use testing and did not have any functional loss and/or functional impairment of the right ankle. The Board has considered the Veteran’s lay statements regarding painful motion, discomfort, and increased symptoms with prolonged standing and walking. He is certainly competent to report these symptoms. See Layno, 6 Vet. App. at 469-70. However, the Board finds that these lay reports are consistent with no more than moderate impairment, even taking into account the types of functional impairment addressed in 38 C.F.R. §§ 4.40 and 4.45. The Veteran does not require assistive devices to ambulate, and he has not reported that his right ankle symptoms cause additional limitation of motion than what is reflected in the objective findings. The Board has considered other potentially applicable Diagnostic Codes in determining whether a higher rating is warranted; however, the Veteran’s right ankle disability is not shown to involve any other factor or diagnosis that would warrant evaluation under any other provision of the rating schedule. The June 2014 VA examination reports demonstrate that the Veteran did not have ankylosis of the ankle, subtalar, and/or tarsal joint. Further, the Veteran does not now have nor has he ever had “shin splints”, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or has the Veteran had a talectomy (astragalectomy). Consequently, an evaluation under Diagnostic Codes 5270, 5272, 5273, or 5274 would not be appropriate. In sum, the Board finds that the most probative evidence more nearly approximates right ankle limitation of motion that is no more than moderate in degree. A rating in excess of 10 percent is therefore not warranted. Consideration has been given to assigning staged ratings. However, at no time has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that right ankle disability has not significantly changed and a uniform rating is warranted. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v, Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Anxiety disorder, NOS with PTSD symptoms The Veteran filed a January 2014 claim for increased rating for an anxiety condition, rated 50 percent disabling. See January 2014 VA Form 21-526b. A July 2014 VA rating decision increased the Veteran’s rating for anxiety disorder, NOS with PTSD symptoms from 50 percent to 70 percent, effective January 9, 2014. See July 2014 rating decision. An April 2015 rating decision granted a temporary total (100 percent) evaluation for anxiety disorder, NOS with PTSD symptoms, from February 5, 2015, to March 31, 2015, based on hospitalization over 21 days. See April 2015 rating decision. A 70 percent rating was assigned beginning April 1, 2015. Id. As the Veteran was in receipt of a maximum, 100 percent rating from February 5, 2015, to March 31, 2015, this period will not be evaluated on appeal. Instead, only the periods prior to February 5, 2015, and beginning April 1, 2015, will be discussed. The Veteran is currently assigned a 70 percent evaluation for his service-connected anxiety disorder, NOS with PTSD symptoms, for the periods prior to February 5, 2015, and beginning April 1, 2015. Based on the guidance in Mittlieder, all mental health symptoms have been considered in the rating for service-connected anxiety disorder, NOS with PTSD symptoms. See Mittlieder v. West, 11 Vet. App. 181 (1998). The Veteran’s service-connected anxiety disorder, NOS with PTSD symptoms is rated under 38 C.F.R. § 4.130, Diagnostic Code 9413. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Taking into account all relevant evidence, the Board finds that a 100 disability rating is not warranted at any point during the period on appeal for his service-connected anxiety disorder, NOS with PTSD symptoms. Instead, the Veteran has exhibited occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Throughout the appeal period, the Veteran’s symptoms have included restricted affect; poor concentration; sad and angry mood; irritability; feelings of worthlessness and hopelessness; and passive suicidal ideation. See June 2014, May 2015, and January 2017 VA examination reports. The June 2014 and May 2015 VA examiners determined the Veteran has occupational and social impairment with reduced reliability and productivity. The January 2017 VA examiner determined the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Nevertheless, the Veteran has not exhibited total occupational and social impairment. The Board notes the evidentiary record showed the Veteran reported having passive suicidal ideation a couple of times per week; however, he denied ever having made an attempt or acted on these thoughts. See May 2015 VA examination report. The Board acknowledges that problems with his family and social withdrawal have been documented in the record. In this regard, the Veteran was noted as having been charged with child abuse in January 2015; however, the charges were dropped. Further, the January 2017 examination report indicated that the Veteran has a no contact order with his wife and a no contact order with his children. However, the Veteran reported that living with his parents has been “fine” and that it is a safe, stable, and supportive relationship. See January 2017 VA examination report. He reported being “very close” with his siblings (one brother and two sisters). Id. He reported having four good friends. He attends events as an alumni member of the Wounded Warriors Project and likes to go fishing. Id. Moreover, the Board notes that poor focus and concentration problems have been noted; however, the Veteran currently works for Delta Airlines on the ground services crew and has maintained his employment for 19 years. See June 2014, May 2015, and January 2017 VA examination reports. He reported that work “keeps him busy.” See January 2017 VA examination report. When asked directly about any functional difficulties at work, the Veteran stated, “No. I’m doing fine there.” Id. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for his PTSD with secondary alcohol use disorder and substance-induced depressive disorder with anxious distress, staged ratings are not warranted. Thus, the Board finds that the criteria for a disability rating of 70 percent for the entire period on appeal is warranted. However, the Veteran’s disability picture does not more nearly approximate the criteria for a 100 percent rating at any time during the appeal period. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). 1. Anxiety disorder, NOS with PTSD symptoms Service connection for anxiety disorder, NOS with PTSD symptoms was granted in a September 2011 rating decision. The AOJ assigned a 50 percent rating, effective May 12, 2011. The Veteran filed a January 2014 claim for increased rating for anxiety condition rated 50 percent disabling. See January 2014 VA Form 21-526b. A July 2014 VA rating decision increased the Veteran’s rating for anxiety disorder, NOS with PTSD symptoms from 50 percent to 70 percent, effective January 9, 2014. See July 2014 rating decision. Through his representative, the Veteran has asserted that he is entitled to an effective date prior to January 9, 2014, for his 70 percent rating for anxiety disorder, NOS with PTSD symptoms. Upon careful consideration of the record, the Board finds that an effective date prior to January 9, 2014, for the grant of a 70 percent rating for anxiety disorder, NOS with PTSD symptoms, is not warranted. Here, it is not in dispute that the Veteran’s claim for a higher rating for his anxiety disorder, NOS with PTSD symptoms was received on January 9, 2014. The record does not support and neither the Veteran nor his representative have asserted that the Veteran has a prior unadjudicated claim for higher rating for his psychiatric disability prior to January 9, 2014. Thus, the issue to be determined by the Board is whether it can be factually ascertained that his anxiety disorder, NOS with PTSD symptoms met the criteria for a 70 percent rating beginning on a particular date during the period from January 9, 2013, to January 9, 2014. The Board finds that the evidence does not support that a 70 percent rating is warranted for the Veteran’s anxiety disorder, NOS with PTSD symptoms within a year prior to January 9, 2014. The medical evidence in the file pertaining to anxiety disorder, NOS with PTSD symptoms, for the period from January 9, 2013, to January 9, 2014, is sparse and the available records do not reflect that anxiety disorder, NOS with PTSD symptoms was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A June 2013 VA psychiatry note indicated that with regard to current functioning, the Veteran reported feeling pretty good and stopped his medications in February. He reported that his symptoms worsened after he stopped his medications and would like to resume medications. A December 2013 VA social work assessment indicated the Veteran was currently working as a ground worker for Delta Airlines and living with his spouse, their two children, his two sons from his first marriage, and his wife’s daughter from a previous relationship. He did not have a history of suicidal ideation or homicidal ideation. In fact, even upon VA examination in June 2014, the period in which the Veteran is in receipt of a 70 percent rating, his anxiety disorder, NOS with PTSD symptoms was characterized as manifested by occupational and social impairment with reduced reliability and productivity. Therefore, January 9, 2014, is the earliest date at which it can be shown that the Veteran met the requirements for a 70 percent rating for his anxiety disorder, NOS with PTSD symptoms. Accordingly, January 9, 2014, is the effective date for this rating. Thus, an earlier effective date is not permissible and the appeal is denied. 2. Right ankle disability Service connection for chronic lateral right ankle anterior talo-fibular ligament strain was granted in a September 2011 rating decision. The AOJ assigned a noncompensable evaluation, effective May 12, 2011. The Veteran filed a January 2014 claim for increased rating for right ankle condition. See January 2014 VA Form 21-526b. A July 2014 rating decision increased the Veteran’s rating for chronic lateral right ankle anterior talo-fibular ligament strain with progressive degenerative joint disease from noncompensable to 10 percent, effective January 9, 2014. See July 2014 rating decision. Through his representative, the Veteran has asserted that he is entitled to an effective date prior to January 9, 2014, for his 10 percent rating for right ankle disability. Upon careful consideration of the record, the Board finds that an effective date prior to January 9, 2014, for the grant of a 10 percent rating for right ankle disability, is not warranted. Here, it is not in dispute that the Veteran’s claim for a higher rating for his right ankle disability was received on January 9, 2014. The record does not support and neither the Veteran nor his representative have asserted that the Veteran has a prior unadjudicated claim for higher rating for his right ankle disability prior to January 9, 2014. Thus, an earlier effective date is only available if a 10 percent rating is factually ascertainable within a year prior to the filing of the claim. However, there is no evidence indicating that a 10 percent rating is warranted for the Veteran’s right ankle disability within a year prior to January 9, 2014. Indeed, the available medical evidence does not indicate treatment for the Veteran’s right ankle disability during this window of time and the available records do not support that the Veteran’s right ankle disability was manifested by moderate limitation of motion. Therefore, January 9, 2014, is the earliest date at which it can be shown that the Veteran met the requirements for a 10 percent rating for his right ankle disability. Accordingly, January 9, 2014, is the effective date for this rating. An earlier effective date is not permissible and the appeal is denied. TDIU The Veteran filed an October 2015 claim for TDIU. See October 2015 VA Form 21-8940. He asserts that he has difficulty with his employment and has missed time from work due to his service-connected disabilities, which he has had to take leave under the Family Medical Leave Act (FMLA) to cover his absences from work. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities are migraine headaches, rated 50 percent disabling from May 12, 2011; obstructive sleep apnea, rated 50 percent disabling from February 23, 2015; anxiety disorder, NOS with PTSD symptoms, rated 50 percent disabling from May 12, 2011, rated 70 percent disabling from January 9, 2014, rated 100 percent disabling from February 5, 2015, to March 31, 2015, and rated 70 percent disabling from April 1, 2015; gastroesophageal reflux disease, rated 20 percent disabling from February 23, 2015; nephrolithiasis, rated 30 percent disabling from February 23, 2015; right shoulder superior trapezial muscle pain, NOS impingement syndrome, rated 10 percent disabling from May 12, 2011; tinnitus, rated 10 percent disabling from May 12, 2011; residuals of traumatic brain injury, to include memory loss, rated 10 percent disabling from May 12, 2011; chronic upper thoracic strain/somatic dysfunction with paravertebral myofascial pain syndrome, rated 10 percent disabling from May 12, 2011; chronic lateral right ankle anterior talo-fibular ligament strain with progressive degenerative joint disease, rated noncompensable from May 12, 2011, and rated 10 percent disabling from January 9, 2014; lower cervical spine somatic dysfunction with paravertebral myofascial pain syndrome, rated 20 percent disabling from May 12, 2011; neck scar, rated noncompensable from May 12, 2011; multiple residual body scars, rated noncompensable from May 12, 2011; and hypertension, rated noncompensable from February 23, 2015. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In this case, the evidence reflects that the Veteran is gainfully employed and has been gainfully employed throughout the entire period on appeal. Significantly, in his October 2015 claim for TDIU, the Veteran reported working full-time as a Delta Airlines baggage handler, earning $55,000 per year, and working 40 hours per week. See October 2015 VA Form 21-8940. He reported using FMLA to compensate for the times he has needed to take off from work. He reported that he did not leave his job because of his disabilities. The Veteran has completed four years of high school. Further, upon VA examination in June 2014, the Veteran reported working for Delta Airlines, in ground operations. He has worked there for 16 years. He reported that his job is going well, but he has been missing work because he does not want to do anything. He took off three weeks in February through March, after his wife left him. He took off six to seven days since then. When he makes it to work, he says he functions “okay.” At his May 2015 VA examination, the Veteran reported he has been working in ground operations for Delta Airlines for 17 years. He reported that he has some “attendance issues” and has been counseled by his manager, but uses FMLA to cover his days off. Upon January 2017 VA examination, the Veteran reported that he currently works for Delta Airlines on the ground services crew where he has been for 19 years. He said that work “keeps him busy.” When asked directly about any functional difficulties associated with work, the Veteran stated, “No. I’m doing fine there.” (Continued on the next page)   Despite the Veteran’s reports that he has missed time from work and has difficulty working due to his service-connected disabilities, the evidence clearly shows that the Veteran has been working full-time during the entire period on appeal. Accordingly, as the Veteran has been substantially gainfully employed throughout the entire period on appeal, entitlement to TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel