Citation Nr: 20021483 Decision Date: 03/26/20 Archive Date: 03/25/20 DOCKET NO. 19-26 717 DATE: March 26, 2020 ORDER An initial compensable evaluation for right foot hallux valgus is denied. An initial compensable evaluation for left foot hallux valgus is denied. An initial evaluation of 10 percent, but not in excess thereof, for headaches is granted. An initial compensable evaluation for dermatitis is denied. An initial compensable evaluation for costochondritis claimed as Tietze syndrome is denied. Service connection for sinusitis is granted. Service connection for multiple sclerosis, claimed as vertigo, is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent for a cervical spine strain. Entitlement to an initial evaluation in excess of 20 percent for degenerative arthritis of the thoracolumbar spine. FINDINGS OF FACT 1. The Veteran’s right foot does not manifest operated hallux valgus with resection of the metatarsal head or severe hallux valgus equivalent to amputation of the great toe. 2. The Veteran’s left foot does not manifest operated hallux valgus with resection of the metatarsal head or severe hallux valgus equivalent to amputation of the great toe. 3. The Veteran’s headaches are productive of the functional equivalent of characteristic prostrating attacks averaging one in two months over a period of several months. 4. The Veteran’s dermatitis is not productive of required systemic therapy or lesions on at least 5 percent of exposed areas or the entire body. 5. The Veteran’s costochondritis or Tietze syndrome is not productive of removal or resection of her ribs, nor is it productive of a moderate, moderately severe, or severe muscle injury. 6. The Veteran’s sinusitis arose in service. 7. The Veteran’s claimed vertigo is a symptom of her multiple sclerosis, which manifested to a compensable degree within seven years of separation from service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for right foot hallux valgus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2019). 2. The criteria for an initial compensable evaluation for left foot hallux valgus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2019). 3. The criteria for an initial evaluation of 10 percent, but not in excess thereof, for headaches have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). 4. The criteria for an initial compensable evaluation dermatitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2019). 5. The criteria for an initial compensable evaluation for costochondritis or Tietze syndrome have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5297 (2019). 6. The criteria for service connection for sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 7. The criteria for service connection for multiple sclerosis, claimed as vertigo, have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2014 to August 2018. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 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. Consideration must 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.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an initial compensable evaluation for right foot hallux valgus 2. Entitlement to an initial compensable evaluation for left foot hallux valgus The Veteran claims compensable ratings for her bilateral hallux valgus. The Veteran’s hallux valgus is rated with two separate ratings as unilateral hallux valgus under 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under this code, a 10 percent rating is warranted for operated hallux valgus with resection of the metatarsal head, or for severe hallux valgus if equivalent to amputation of the great toe. Alternative and additional Diagnostic Codes for the feet are available under 38 C.F.R. § 4.71a, as follows: Acquired pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for bilateral or unilateral moderate flatfoot, with a weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 20 percent rating is warranted for unilateral severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted for bilateral severe flatfoot as described above or for unilateral pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasms of the tendo Achillis on manipulation, and no improvement by orthopedic shoes or appliances. A 50 percent rating is warranted for bilateral pronounced flatfoot as described above. Bilateral weak foot is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5277. The disability is defined as a symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. It is to be rated based on the underlying condition but with a minimum rating of 10 percent. Acquired pes cavus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5278. A 0 percent rating is warranted for slight pes cavus. A 10 percent rating is warranted for unilateral or bilateral pes cavus with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads. A 20 percent rating is warranted for unilateral pes cavus and a 30 percent rating is warranted for bilateral pes cavus when all toes tend to dorsiflexion, there is limitation of dorsiflexion at the ankle to a right angle, plantar fascia are shortened, and there is marked tenderness under the metatarsal heads. A 30 percent rating is warranted for unilateral pes cavus and a 50 percent rating is warranted for bilateral pes cavus when there is marked contraction of the plantar fascia with dropped forefoot, all toes are hammer toes, there are very painful callosities, and there is marked varus deformity. Unilateral or bilateral metatarsalgia (Morton’s disease) is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5279. Under 38 C.F.R. § 4.71a, Diagnostic Code 5281, unilateral severe hallux rigidus is to be rated as severe hallux valgus. Ratings for hallux rigidus are not to be combined with ratings for pes cavus. Hammer toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282. Single hammer toes are rated at 0 percent. All toes, unilateral, without claw foot, are rated at 10 percent. Nonunion or malunion of the tarsal or metatarsal bones are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5283. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. Other foot injuries are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284. A moderate disability is rated at 10 percent, a moderately severe disability is rated at 20 percent, and a severe disability is rated at 30 percent. Actual loss of use of the foot is rated at 40 percent. The Veteran underwent a VA examination in November 2018. She reported painful calluses on her feet which increase after prolonged standing. She reported that inserts helped with arch support but not with rubbing of calluses. She rated pain at 5/10 in the right foot and 4/10 in the left foot. She denied flare-ups and functional loss after repeated use over time. The examiner found mild to moderate symptoms but not severe with function equivalent to amputation of the great toes. There was no history of surgery. There was no pes planus, metatarsalgia, hammer toe, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. Pain noted on examination was subjective. She was diagnosed with bilateral hallux valgus with callosities and corns. The examiner noted thick, hardened skin of the bilateral feet with a moderate severity. There was no functional loss associated with her diagnoses. In a January 2019 letter, the Veteran’s private chiropractor stated that she has large and tender bunions on both feet. They were large and tender to palpation with palpable edema. Walking was impaired. In her January 2019 notice of disagreement, the Veteran stated that her hallux valgus should be rated at 10 percent in each foot. The Board finds that compensable ratings are not warranted for the Veteran’s hallux valgus. Higher ratings are warranted for operated hallux valgus with resection of the metatarsal head, or for severe hallux valgus if equivalent to amputation of the great toe. The evidence weighs against such symptoms. She has not had surgery on her feet, and the November 2018 VA examiner explicitly found moderate symptoms, not severe symptoms equivalent to amputation of the great toe. There is no evidence in the record to contradict the examiner’s findings. Furthermore, there is no evidence of pes planus, bilateral weak foot, pes cavus, metatarsalgia, hallux rigidus, hammer toe, malunion or nonunion of the tarsal or metatarsal bones, or any other foot disability. For these reasons, the Board finds that compensable ratings are not warranted for the Veteran’s hallux valgus. 3. Entitlement to an initial compensable evaluation for headaches The Veteran claims a compensable rating for her headaches. The Veteran’s headaches are rated as migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this code, headaches are rated at 0 percent with less frequent attacks. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over a period of several months. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over a period of several months. The maximum rating of 50 percent is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran underwent a VA examination in November 2018. She reported daily headaches with sharp pain, stating that one or two days a week her headaches were really bad, rated at 10/10. Pain was described as pulsating or throbbing and on both sides of the head. She reported associated sensitivity to light along with feeling weak, tired, and forgetful. The examiner found no characteristic prostrating attacks of migraine or nonmigraine headache pain. She was diagnosed with headaches causing no functional impact on her ability to work. In a January 2019 letter, the Veteran’s private chiropractor stated that she experiences three or more episodes of headaches weekly, with episodes lasting 2-6 hours depending on access to medication. In her January 2019 notice of disagreement, the Veteran stated that her headaches should be rated at 40 percent. The Board finds that a 10 percent evaluation is warranted for the Veteran’s headaches. Compensable evaluations are available based on characteristic prostrating attacks. While the Veteran reports multiple headaches per week, neither the November 2018 VA examiner nor the January 2019 private chiropractor noted the presence of prostrating attacks which require her to lie down to alleviate her pain. Indeed, the VA examiner explicitly noted their absence. Nevertheless, the Veteran consistently reports headaches rated maximally painful occurring multiple times per week. While it is unclear whether these attacks are prostrating, the Board finds that their frequency and intensity are the functional equivalent of one prostrating attack every two months, warranting a 10 percent rating. A higher rating requires the functional equivalent of more frequent prostrating attacks. The evidence weighs against such a finding. Notably, absent the VA examination report and a report from her private chiropractor, there is no evidence of treatment for headaches since separation from service. For these reasons, the Board finds that an evaluation of 10 percent, but not in excess thereof, is warranted for the Veteran’s headaches. 4. Entitlement to an initial compensable evaluation for dermatitis The Veteran claims a compensable rating for her dermatitis. The Veteran’s dermatitis is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806, which directs that dermatitis be evaluated under the General Rating Formula for the Skin. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body or of exposed areas. A 10 percent rating is assigned for characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body or of exposed areas; or for intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned for characteristic lesions involving more than 20 to 40 percent of the entire body or of exposed areas; or for systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for characteristic lesions involving more than 40 percent of the entire body or exposed areas; or for constant or near-constant systemic therapy required over the past 12-month period. Systemic therapy included, but is not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs. Additionally, systemic therapy is defined as treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Dermatitis may also be evaluated as scars if scarring is the predominant disability. The Veteran underwent a VA examination in November 2018. She reported black dots and discoloration on her face, neck, chest, and back with itching and tingling. She stated that symptoms were intermittent, and her last flare-up was one month prior. She had been treated with topical corticosteroids for intermittent periods totalling 6 weeks over the prior 12 months. Her examination showed no current affected areas or visible lesions. There was no scarring. She was diagnosed with unspecified dermatitis. In a January 2019 letter, the Veteran’s private chiropractor stated that she had maculopapular dermatitis on her face, thorax, and across her shoulders. She was diagnosed with dermatosis. In her January 2019 notice of disagreement, the Veteran stated that her dermatitis should be rated at 20 percent. The Board finds that the evidence weighs against a compensable evaluation for dermatitis. Compensable ratings are available for required systemic therapy or for lesions on at least 5 percent of exposed areas or the entire body. The evidence weighs against such manifestations. There is no evidence of systemic therapy during the appeal period or 12 months prior; the topical therapy noted by the VA examiner does not constitute systemic therapy. 38 C.F.R. § 4.118(a). There were no visible lesions at the Veteran’s November 2018 VA examination. While her January 2019 chiropractor stated that there was dermatitis on her face, thorax, and across her shoulders, no specific information was given about lesions, the amount of space they covered, or even if this was reported by the Veteran or based on current examination. For these reasons, the Board finds that the evidence weighs against a compensable evaluation for dermatitis. 5. Entitlement to an initial compensable evaluation for costochondritis or Tietze syndrome The Veteran claims a compensable rating for her costochondritis or Tietze syndrome. There is no applicable Diagnostic Code for costochondritis or for Tietze syndrome. The Veteran’s disability is currently rated by analogy to a disability of the ribs under 38 C.F.R. § 4.71a, Diagnostic Code 5297. Under this code, a 10 percent rating is warranted for removal of one or resection of two or more ribs without regeneration. A 20 percent rating is warranted for removal of two ribs. A 30 percent rating is warranted for removal of three or four ribs. A 40 percent rating is warranted for removal of five or six ribs. A 50 percent rating is warranted for removal of more than six ribs. The Board has also considered the applicability of 38 C.F.R. § 4.73, Diagnostic Code 5321, for disabilities affecting the thoracic muscle group responsible for respiration. Under this code, a noncompensable rating is warranted for a slight disability, a 10 percent rating is warranted for a moderate disability, and a 20 percent rating is warranted for a severe or moderately severe disability. For VA ratings purpose, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. A slight muscle disability is defined as a simple wound of the muscle without debridement or infection. Such a wound should have a history of brief treatment and return to duty, exhibiting healing with good functional results, and no cardinal signs and symptoms. Residuals include minimal scar, no impairment of function, no retained metallic fragments, and no evidence of fascial defect, atrophy, or impaired tonus. 38 C.F.R. § 4.56(d)(1). A moderate muscle disability is defined as a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Such a wound should result in consistent complaint of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Residuals include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A through and through injury with muscle damage shall be evaluated at no less than a moderate disability. 38 C.F.R. § 4.56(b). A moderately severe muscle disability is defined as a through and through or deep penetrating wound by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complain of cardinal signs and symptoms, and, if present, evidence of inability to keep up with work requirements. Residuals include entrance and (if present) exit scars indicating track of missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and tests of strength and endurance with positive evidence of impairment compared with sound side. 38 C.F.R. § 4.56(d)(3). A severe muscle disability is defined as a through and through or deep penetrating wound due to a high velocity missile or large and multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complaint of cardinal signs and symptoms worse than those shown for a moderately severe disability, and, if present, evidence of inability to keep up with work requirements. Residuals include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; abnormal swelling and hardening in muscle contraction; and tests of strength, endurance, or coordinated movements indicating severe impairment of function compared to sound side. A severe disability can also be shown by x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to bone; diminished muscle excitability to pulsed electrical current; visible or measurable atrophy; adaptive contraction of an opposing muscle group; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). An open comminuted fracture with muscle or tendon damage will be evaluated as severe unless muscle damage is minimal. 38 C.F.R. § 4.56(a). The Veteran underwent a VA examination in November 2018. She reported intermittent chest pain when laughing or coughing 1-2 times per month. She rated her pain at 6-7/10. Chest x-rays were normal. She underwent pulmonary function testing, but the examiner found the results invalid due to poor effort. She was diagnosed with costochondritis (Tietze’s syndrome). In her January 2019 notice of disagreement, the Veteran stated that her costochondritis/Tietze’s syndrome should be rated at 40 percent. The Board finds that a compensable evaluation is not warranted for the Veteran’s costochondritis or Tietze syndrome. Compensable ratings are available for removal or resection of the ribs or for a moderate, moderately severe, or severe muscle injury. There is no evidence of such symptoms. She has had no rib surgery, and intermittent chest muscle pain occurring once or twice per month, as reported at the November 2018 VA examination, is no more severe than a slight muscle injury, which is noncompensable. See 38 C.F.R. § 4.56(d)(1). For these reasons, the Board finds that a compensable evaluation is not warranted for the Veteran’s costochondritis or Tietze syndrome. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 6. Entitlement to service connection for sinusitis The Veteran claims service connection for a sinusitis condition. Service treatment records reflect that in September 2015 the Veteran reported symptoms including congestion and sinus pressure. She was diagnosed with an acute upper respiratory infection. The next day she reported sinus congestion with a yellowish clear discharge. She was diagnosed with acute sinusitis. In November 2016 she reported sinus congestion and was diagnosed with an unspecified acute upper respiratory infection. Her sinuses were noted as abnormal at her March 2018 separation examination with bilateral swollen turbinates. In the accompanying report of medical history, she stated that she had had issues with her sinuses in the past. The Veteran underwent a VA examination in November 2018. She reported sinusitis with onset in 2014 during active duty. She reported intermittent symptoms of nasal congestion and headaches about once per month. Sinus x-rays showed no evidence of acute or chronic sinusitis. The examiner found no objective evidence of a current diagnosis of sinusitis. In a January 2019 letter, the Veteran’s private chiropractor stated that she was diagnosed with chronic sinusitis. Symptoms included congestion of maxillary sinuses with difficulty breathing, facial pain, and intermittent dizziness. Current sinusitis was confirmed on examination. The chiropractor stated that the condition arose during service and persisted to the present without hiatus. The Board finds that the evidence is at least in equipoise that current sinusitis is arose in service. Sinusitis with bilateral swollen turbinates was noted at the Veteran’s March 2018 separation examination, and she filed her claim for benefits in September 2018, eleven days after separation from service. While no symptoms of sinusitis were noted at her November 2018 VA examination, current sinusitis was confirmed on examination by her chiropractor in January 2019. Regardless of whether sinusitis persisted from March 2018 to January 2019, it is at least as likely as not that the condition noted on her separation exam was current during the appeals period beginning so soon after separation. For these reasons, the Board finds that the evidence is at least in equipoise as to whether current sinusitis arose in service. Service connection is therefore granted. 7. Entitlement to service connection for multiple sclerosis, claimed as vertigo The Veteran claimed service connection for vertigo. As discussed below, the Board construes this claim to encompass a claim for the underlying condition of multiple sclerosis. Service treatment records do not reflect any symptoms of or treatment for vertigo. No such abnormality was noted at the Veteran’s March 2018 separation examination. In the accompanying report of medical history she stated that she had experienced dizziness or fainting spells, but she explained that she would like to be tested for epilepsy due to fainting spells on her menstrual period. A week after her examination, she reported previous episodes of dizziness and presyncope. Specifically, she experienced one episode of dizziness without loss of consciousness in the prior 21 weeks. She was diagnosed with dizziness and giddiness. Her physician suspected vasovagal involvement. The Veteran underwent a VA examination in November 2018. She reported that in 2014 while visiting her family she blacked out. Since then she reported that if she does not eat something symptoms may occur. She reported episodes of dizziness, blackouts, and lightheadedness occurring 6-7 times per month. The examiner found no objective evidence to support a current diagnosis of vertigo. In a January 2019 letter, the Veteran’s private chiropractor stated she experienced dizziness as a symptom of her sinusitis. Private treatment records reflect that in March 2019 the Veteran presented with headache, dizziness, and blurred vision. After a series of MRIs, including April 2019 MRIs of the brain showing white matter lesions, in July 2019 she was diagnosed with multiple sclerosis. An August 2019 MRI showed a lesion on the cervical spinal cord. VA treatment records confirm the diagnosis of multiple sclerosis in October 2019, as does a March 2020 VA examination report. The Board finds that the Veteran’s claimed vertigo is at least as likely as not a symptom of her multiple sclerosis. She was not diagnosed with multiple sclerosis at the time of her September 2018 claim or her November 2018 VA examination, and as such no secondary opinion was provided. Private treatment records, however, show that multiple sclerosis was diagnosed by MRI in July 2019 after she reported headache, dizziness, and blurred vision. Because the Veteran was unaware that vertigo was a symptom of multiple sclerosis at the time of her claim, the RO processed the claim as a claim for vertigo only. The Board nevertheless construes her claim to encompass service connection for the underlying condition of multiple sclerosis. Multiple sclerosis diagnosed within seven years of separation is presumptively service connected as a chronic disability. 38 C.F.R. § 3.307(a)(3). Service connection for multiple sclerosis is therefore granted. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent for a cervical spine strain The Veteran claims an increased rating for her cervical spine strain. The Veteran is currently in receipt of a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for a cervical strain. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; for combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; for combined range of motion of the cervical spine not greater than 170 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is assignable for forward flexion of the cervical spine limited to 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Veteran underwent a VA examination in November 2018. She reported current intermittent pain and stiffness rated at 5/10. She denied use of a neck brace. She denied flare-ups and functional loss after repeated use over time. Forward flexion and extension were full to 45 degrees. Right lateral flexion was limited to 30 degrees. Left lateral flexion was limited to 40 degrees. Lateral rotation was limited to 60 degrees in both directions. Pain was noted in all ranges, but it did not result in functional loss. Repetitive testing limited forward flexion to 40 degrees with a contributing factor of pain. There was no evidence of localized tenderness, pain to palpation, guarding, or pain with weight bearing. There was muscle spasm, but it did not result in abnormal gait or contour. Muscle strength was 4/5 without atrophy. Reflexes and sensory testing were normal. Straight leg raising was negative. There were no symptoms of radiculopathy or other neurologic abnormalities. There was no ankylosis. There was no IVDS. X-rays were normal with no arthritis. She was diagnosed with a cervical strain, and the examiner found no functional impact on her ability to work. In a January 2019 letter, the Veteran’s private chiropractor stated that her cervical spine disability could not possibly be a strain due to the chronicity of the condition and the presence of bilateral radicular pain of the arms and hands. On examination, forward flexion was limited to 35 degrees, extension was limited to 10 degrees, right lateral flexion was limited to 25 degrees, left lateral flexion was limited to 20 degrees, right lateral rotation was limited to 15 degrees, and left lateral rotation was limited to 20 degrees. The chiropractor noted significant (50 percent or more) loss of the normal vertebral motility. She was diagnosed with posttraumatic residual degenerative joint disease and spondylosis of the cervical and cervicothoracic regions with bilateral radiculopathy. In her January 2019 notice of disagreement, the Veteran stated that her cervical strain should be rated at 40 percent. Private treatment records include an August 2019 MRI of the cervical spine used to diagnose the Veteran’s multiple sclerosis. Early or very mild multilevel cervical spondylosis without stenosis was noted. The Board finds that remand is necessary to provide the Veteran with a new examination. The ranges of motion measured by her chiropractor in January 2019 are substantially different from those measured by the VA examiner less than two months earlier. A new examination is needed to resolve this difference. In addition, the chiropractor noted radiculopathy but made no comment on the affected nerves or severity of symptoms. As the chiropractor diagnosed radiculopathy without support of x-ray or MRI evidence, it is unclear if the reported symptoms were in fact related to her as yet undiagnosed multiple sclerosis. On remand, the examiner must offer an opinion on whether she exhibits radiculopathy, with reference to the chiropractor’s opinion. The Board further notes that the November 2018 VA examiner impermissibly stated that it was impossible to estimate functional loss during a flare-up or after repeated use over time without directly observing the Veteran under such conditions. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative arthritis of the thoracolumbar spine The Veteran claims an increased rating for her degenerative arthritis of the thoracolumbar spine. The Veteran is currently in receipt of a 20 percent disability rating for her thoracolumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5242, degenerative arthritis of the spine. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as IVDS under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The next higher rating of 40 percent is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Veteran underwent a VA examination in November 2018. She reported increasing pain and pulling when bending, standing, or exercising. She rated pain at 6/10. She denied flare-ups or functional loss with repeated use over time. She denied use of assistive devices. Forward flexion was limited to 70 degrees. Extension, right lateral flexion, left lateral flexion, and right lateral rotation were full to 30 degrees. Left lateral rotation was limited to 25 degrees. Pain was noted in all ranges but did not result in functional loss. Repetitive testing further limited forward flexion to 60 degrees and left lateral flexion to 25 degrees with a contributing factor of pain. There was no evidence of localized tenderness, pain to palpation, guarding, muscle spasm, or pain with weight bearing. Muscle strength was 4/5 without atrophy. Reflexes and sensory testing were normal. Straight leg raising was negative. There were no symptoms of radiculopathy or other neurologic abnormalities. There was no ankylosis. There was no IVDS. X-rays showed arthritis. She was diagnosed with degenerative arthritis of the spine, and the examiner found no functional impact on her ability to work. The Board notes that the VA examiner impermissibly stated that it was impossible to estimate functional loss during a flare-up or after repeated use over time without directly observing the Veteran under such conditions. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). In a January 2019 letter, the Veteran’s private chiropractor stated that she suffers from chronic low back pain with bilateral radicular pain and paresthesia in sciatic distributions. Forward flexion was limited to 20 degrees. Extension was limited to 5 degrees. Right lateral flexion was limited to 15 degrees. Left lateral flexion was limited to 10 degrees. Right lateral rotation was limited to 10 degrees. Left lateral rotation was limited to 5 degrees. Straight leg raise testing was positive. In her January 2019 notice of disagreement, the Veteran stated that her thoracolumbar spine disability should be rated at 60 percent. The Board finds that remand is necessary to provide the Veteran with a new examination. The ranges of motion measured by her chiropractor in January 2019 are substantially different from those measured by the VA examiner less than two months earlier. A new examination is needed to resolve this difference. In addition, the chiropractor noted radiculopathy but made no comment on the severity of symptoms. As the chiropractor diagnosed radiculopathy without support of x-ray or MRI evidence, it is unclear if the reported symptoms were in fact related to her as yet undiagnosed multiple sclerosis. On remand, the examiner must offer an opinion on whether she exhibits radiculopathy, with reference to the chiropractor’s opinion. The Board further notes that the November 2018 VA examiner impermissibly stated that it was impossible to estimate functional loss during a flare-up or after repeated use over time without directly observing the Veteran under such conditions. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination to determine the level of severity of her cervical spine disability. The examiner should report the extent of the Veteran’s disability in accordance with VA rating criteria. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer a diagnosis of any radiculopathy of the upper extremities. In so doing, the examiner must make reference to the January 2019 private diagnosis of radiculopathy. VA examiners must provide an estimate of such functional limitation in terms of degrees of motion. If such estimation is not possible without resort to speculation, examiners must give an explanation as to why this is so beyond merely noting that objective examination in such conditions has not been performed. In such a case there is necessarily a lack of objective testing and observation, and an estimation therefore must be based on statements by the veteran or other treatment records. If such an estimation is impossible, it must be clear that the impossibility is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for a VA examination to determine the level of severity of her thoracolumbar spine disability. The examiner should report the extent of the Veteran’s disability in accordance with VA rating criteria. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer a diagnosis of any radiculopathy of the lower extremities. In so doing, the examiner must make reference to the January 2019 private diagnosis of radiculopathy. VA examiners must provide an estimate of such functional limitation in terms of degrees of motion. If such estimation is not possible without resort to speculation, examiners must give an explanation as to why this is so beyond merely noting that objective examination in such conditions has not been performed. In such a case there is necessarily a lack of objective testing and observation, and an estimation therefore must be based on statements by the veteran or other treatment records. If such an estimation is impossible, it must be clear that the impossibility is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and her representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.