Citation Nr: 21001247 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-37 350 DATE: January 7, 2021 ORDER Entitlement to a total 100 percent rating for TBI residuals with PTSD is granted. Entitlement to an increased rating of 10 percent for left eye injury residuals (recurrent corneal erosions) is granted. Entitlement to an increased rating of 10 percent for painful motion of the left knee (patellofemoral pain syndrome) is granted. Entitlement to a separate rating of 10 percent for lateral instability of the left knee is granted. Entitlement to an increased rating of 30 percent for GERD is granted. Entitlement to an increased rating in excess of 20 percent for left shoulder impingement syndrome with bursitis is denied. Entitlement to an increased rating of 40 percent for degenerative arthritis of the thoracolumbar spine is granted. REMANDED Entitlement to an increased rating for a tendon strain of the right fifth finger is remanded. FINDINGS OF FACT 1. The Veteran’s TBI with PTSD results in total occupational and social impairment, as well as objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. 2. The Veteran’s left eye recurrent corneal erosions result in unilateral contraction of the visual field between 16 and 30 degrees. 3. There is objective evidence of pain with movement due to the Veteran’s left knee patellofemoral pain syndrome. 4. The Veteran’s left knee patellofemoral pain syndrome causes slight instability. 5. The Veteran’s GERD manifests in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain that is productive of considerable impairment of health. 6. Considering the Veteran’s pain and corresponding functional impairment, his left shoulder disability manifests by limitation of motion due to pain at the shoulder level. 7. The Veteran’s degenerative arthritis of the thoracolumbar spine manifests as forward flexion less than 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation 100 percent evaluation for TBI with PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 9411-8045. 2. The criteria for a 10 percent rating, but no higher, for left eye recurrent corneal erosions have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code 6009, 6066, 6080. 3. The criteria for a 10 percent rating, but no higher, for painful motion due to left knee patellofemoral pain syndrome have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256 to 5263. 4. The criteria for a 10 percent rating, but no higher, for lateral instability due to left knee patellofemoral pain syndrome have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263. 5. The criteria for a 30 percent rating, but not higher, for GERD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 6. The criteria for an initial rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019-5201. 7. The criteria for an increased rating of 40 percent, but no higher, for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1995 to August 1998; from October 2001 to May 2002; from May 2004 to March 2005; from August 2007 to May 2012; from June 2012 to September 2012; and from November 2012 to September 2015. These matters are on appeal to the Board of Veterans’ Appeals (Board) from March 2016 and July 2016 rating decisions. A hearing was held by the undersigned Veterans Law Judge in September 2019; a transcript is of record. The claims were subsequently remanded in a July 2020 Board decision. The Board finds the July 2020 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Of note, evidence of record clearly raises the issue of unemployability due to service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has a 100 percent combined disability rating as of October 1, 2017, rendering the issue of entitlement to a TDIU moot as of that date. While entitlement to a TDIU for the period from October 1, 2015 to September 30, 2017 would be within the jurisdiction of the Board, the conclusions reached in this decision entitle the Veteran to a 100 percent combined disability rating as of October 1, 2015. Thus, entitlement to a TDIU is moot throughout the entire appeal period and will not be further addressed in this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).  Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for the disabilities on appeal effective October 1, 2015, the day after discharge from service. As the Veteran is pursuing his initial ratings, the Board will consider the evidence as of October 1, 2015. 1. Increased rating - TBI residuals with PTSD The Veteran has a single assignment for his TBI and PTSD rated at 50 percent disabling. The current version of Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124, Diagnostic Code 8045. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The current version of Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe”“ traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The Veteran’s single assignment is currently rated under Diagnostic Code 9411 for PTSD, which provides for a rating pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 116-17; Mauerhan, 16 Vet. App. at 442. The Veteran has undergone several psychiatric and neurocognitive evaluations throughout the appeal period. In a January 2016 VA examination, the Veteran’s PTSD was listed as a diagnosis, but no diagnosis of a TBI was indicated. The examiner concluded the Veteran’s PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. The report reflected symptoms of depressed mood, panic attacks weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The Veteran also endorsed irritable behavior and angry outbursts, hypervigilance and exaggerated startle response, problems with concentration, and passive thoughts of death. In an April 2016 New Jersey Army National Guard document referring the Veteran for evaluation, he was noted to have recurrent anxiety, irritability, and anger outbursts with insomnia and hypervigilance. He experienced frequent flashbacks. In March and April 2016 mental health treatment notes, the Veteran endorsed flashbacks and nightmares, memory and concentration problems, multiple panic attacks, and constant hypervigilance. In a March 2017 neuropsychological evaluation, it was determined the Veteran suffers from mild neurocognitive disorder with primary difficulties in attention and processing speed that impact other areas of functioning, such as learning and memory. The cause of his neurocognitive difficulties was found to be likely multifactorial, including his history of TBIs, PTSD, depression, generalized anxiety, impaired sleep, and chronic pain. In an April 2017 Disability Benefits Questionnaire, the Veteran’s listed diagnoses were PTSD, cyclothymic disorder with anxious distress, and obsessive compulsive disorder. The psychologist concluded the Veteran’s diagnoses resulted in occupational and social impairment with reduced reliability and productivity. The psychologist also noted the existence of a TBI, and reasoned that the Veteran’s memory deficits, difficulties with concentration, and heightened irritability are all hypothesized to be the byproducts of his TBI. His listed PTSD symptoms were depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances, and obsessional rituals which interfere with routine activities. In a June 2017 VA examination, the Veteran’s diagnoses were PTSD and unspecified mild neurocognitive disorder. The examiner determined the intrusive symptoms, dysphoric affect, and symptoms of hyperarousal were attributable to the PTSD while cognitive difficulties were attributable to both diagnoses and the disorders potentiate each other. The examiner concluded the Veteran’s symptoms result in occupational and social impairment with deficiencies in most areas, yet it was not possible to ascertain which disorder caused such impairment as the disorders have significant symptom overlap and vary in prominence. Additional symptoms listed were panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, flattened affect, impaired judgment, impaired impulse control, intermittent inability to perform activities of daily living, and suicidal ideation. In a September 2017 VA examination for his TBI, the highest level of severity found for the Veteran’s TBI symptoms was a “1” for mild memory loss and occasionally inappropriate social interaction. The examining neurologist opined the Veteran’s TBI and PTSD symptoms are comorbid and cannot be separated without mere speculation. In an October 2018 VA examination for PTSD, the examiner indicated differentiating between symptoms was not possible as the Veteran’s irritability, memory, and concentration problems may be attributable to both PTSD and TBI. She determined the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas. Additional symptoms listed were impairment of short- and long-term memory, persistent delusions or hallucinations, an inability to establish and maintain effective relationships, and persistent danger of hurting self or others. In a December 2018 TBI cognitive screening, the highest level of severity found for the Veteran’s TBI symptoms was “total” for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. In the Veteran’s hearing, the Veteran’s spouse stated he was a danger to himself and others. She recounted a recent incident of the Veteran experiencing road rage, which resulted in a car accident. Due to this behavior, he rarely drives. His spouse is his full-time caregiver, who conducts the majority of the financial decisions and parental duties and assists him with his daily living activities. He is socially isolated and expresses suicidal ideation frequently. The Veteran has undergone frequent, consistent treatment for his mental health. The treatment records reflect significant occupational and social impairment – specifically, the Veteran is unable to work due to his inability to interact with others, and rarely leaves the house to avoid social interaction. His impaired decision-making and sporadic, at times violent, behavior requires his spouse to be his full-time caregiver. He has endorsed suicidal ideation on multiple occasions. In sum, the Veteran has exhibited grossly inappropriate behavior, a persistent danger of hurting self or others, and an intermittent inability to perform activities of daily living – all associated with a 100 percent rating under the PTSD criteria. Additionally, he experiences neurocognitive difficulties due to his PTSD and TBI resulting in objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Both diagnostic criteria, caused by a combination of PTSD and a TBI, result in a 100 percent rating. 2. Increased rating – left eye injury residuals The Veteran currently has a noncompensable rating for his recurrent corneal erosion of the left eye under 38 C.F.R. § 4.79, Diagnostic Code 6009 for an unhealed eye injury. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, Diagnostic Code 6009 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for Diagnostic Codes 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the revised criteria, Diagnostic Code 6009 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye also instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. It is noted that the definition of incapacitating episodes was changed in the amendment, with the former criteria defining them as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other health care provider and the revised criteria defining them as an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, with further elaboration of the types of treatment it exemplifies. It is also noted that both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive change to how visual acuity is rated. With regard to visual field defects and impairment of muscle function, examination reports no longer are required to include a Goldmann chart. There are otherwise no substantive changes to how those types of visual impairment are rated. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §4.75 (a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. With respect to field of vision impairment, 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500. The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes.38 C.F.R. § 4.76a. Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees unilaterally. A30 percent evaluation is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual filed bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual field defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction). 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. As the evidence shows noncompensable levels of visual acuity for VA purposes throughout the appeal period, for purposes of brevity the rating criteria are not listed in this decision. In the Veteran’s January 2016 VA examination, he endorsed foreign body sensation in the left eye with tearing, light sensitivity, and pain. This occurs at least biweekly. His corrected distance visual acuity was 20/40, and no visual field defect was indicated, though it is unclear if visual field testing was conducted. The examiner stated there was mild decreased best corrected visual acuity due to dry eye and recurrent corneal erosion. There were no incapacitating episodes in the prior 12 months. In a July 2016 treatment note, the Veteran reported waking up in the middle of the night with foreign body sensation, tearing, and pain. He stated the episodes last 3-4 days and recur weekly. During these episodes, the Veteran has blurry vision and is unable to work. In a March 2017 note, the Veteran endorsed eye pain a couple times a month, using artificial tears for treatment. In an October 2017 VA examination, the Veteran reported recurrent episodes 2-3 times per month. He uses artificial tears during the day and gel at night. His best corrected visual acuity was 20/40 or better. The examiner found the Veteran’s left eye corneal disability does cause visual impairment in the form of contraction of visual field. The examiner also indicated the Veteran did suffer from incapacitating episodes less than one week over the past 12 months, citing extreme eye pain occurring during an episode that can last minutes to many hours. At its worst, the Veteran needs to stay in a dark room. The report also reflected diagnoses of conjunctivitis and pinguecula; however, the examiner indicated they were unrelated to the Veteran’s left eye corneal condition, which is the cause of his visual impairment. According to the Goldmann chart, the Veteran’s visual fields at the 8 principal meridians was 234. The average contraction of the left eye was 29.25. Under the Diagnostic Code, concentric contraction with remaining field of 16 to 30 degrees unilaterally warrants a 10 percent rating. In a December 2017 VA treatment record, the Veteran reported less frequent episodes occurring once or twice per month. In his September 2019 hearing, the Veteran reported reduced peripheral vision on the left. He stated he has pain in the eye and must use artificial tears constantly. The evidence of record warrants a 10 percent rating for a left eye visual field defect. While the Board acknowledges the October 2017 examination report’s indication of incapacitating episodes, the evidence does not reflect incapacitating episodes under either definition provided by the Diagnostic Code. In other words, the Veteran’s eye episodes do not require prescribed bedrest or doctor visits for treatment purposes. Thus, the Veteran is entitled to a 10 percent rating, but no higher, for his left eye disability. 3. Increased rating - left knee patellofemoral pain syndrome The Veteran currently has a noncompensable rating (0%) for his left knee disability. Diagnostic Code 5003 directs that the disability should be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. If limitation of motion is noncompensable, a 10 percent rating should be assigned if objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate,” and “severe” used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just” decisions. 38 C.F.R. § 4.6. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, meniscus involvement, or ankylosis of the knee. As such, those diagnostic codes are not for application. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; 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 criteria.”). In a January 2016 VA examination, the Veteran endorsed daily left knee pain aggravated by using stairs or jumping. He did not report flare-ups or functional loss or impairment of the joint. His range of motion was normal. There was no tenderness, no crepitus, and no pain noted on examination. There was no history of recurrent subluxation or lateral instability, and the left knee was stable upon testing. He reported using a knee brace. In an October 2017 VA examination, the Veteran reported flare-ups of the left knee with difficulty bending, extending, and weight bearing. He described functional impairment with difficulty standing, walking, running, bending, and using stairs. His left knee flexion and extension was to 85 degrees, which contributed to a functional loss as it impedes transfer from a low seated position, kneeling, squatting, and step climbing. Pain was noted on flexion and extension and with weight bearing. There was objective evidence of tenderness and crepitus. Following repetitive use testing, the Veteran’s range of motion was the same; however, during a flare-up, the examiner determined the Veteran’s range of motion was to 80 degrees. Weakened movement and disturbance of locomotion was noted to be a contributing factor. The Veteran did not have muscle atrophy but did have a reduction in muscle strength due to his knee disability and radiculopathy. No history of recurrent subluxation or lateral instability was indicated, and the Veteran’s knee was stable upon testing. He reported regularly using a cane and brace. February 2017 treatment records reflect pain and stiffness of the left knee, with worsening pain with overexertion and limited range of motion when pain is high, which often occurs out of nowhere. In November and December 2018, full range of motion of the left knee was indicated. In the Veteran’s hearing, he endorsed lateral instability of the knee that causes him to lose his balance. He reported falling on many occasions, sustaining injuries to his back and head. He reported using a cane but was not using one at the hearing. An October 2019 record reflects buckling knees with a fall two weeks prior. A September 2020 record reflects that the Veteran fell the week prior when his knees gave out on the steps. He stated his knee braces work as long as his knees do not give out. He stated that a cane is useful for balance, but he falls if his knees buckle. An October 2020 record indicates the Veteran has been falling more frequently in the past year and feels both knees buckle. However, there is no clicking, locking, or swelling of the knees. The evidence of record does not reflect such reduced flexion and extension to warrant a compensable rating within the criteria. However, there is objective evidence of pain with movement. Thus, the Veteran is entitled a 10 percent rating based on pain with movement. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. There is also objective and subjective evidence of instability. A precedent decision of the U. S. Court of Appeals for Veterans Claims (Court) held that an objective clinical finding of instability is not required, noting this also may be established by subjective complaint. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Thus, while the two VA examinations of record do not indicate instability, the Veteran’s contentions, coupled with the medical records reflecting the Veteran’s falls and injuries as a result of such instability, are sufficient to establish a finding of instability. The Board finds that the preponderance of the evidence reflects slight instability rather than moderate or severe. While the Veteran has sustained falls, he does not require constant use of the cane, which suggests the concern for instability is not constant. Moreover, the lack of objective findings of instability in two physical examinations further suggests that such instability is sporadic and infrequent. Of note, the Veteran’s VA examinations for his right knee disability (for which he is also service connected) do reflect slight recurrent subluxation and instability, which are likely also contributing to the Veteran’s more recent falls. Thus, the Board finds the Veteran’s left knee disability warrants two separate ratings: 10 percent for painful motion and 10 percent for instability. 4. Increased rating - GERD The Veteran currently has a noncompensable rating for his GERD. There is no diagnostic code corresponding to GERD in VA’s rating schedule. When an unlisted condition, such as GERD, is encountered it is permissible to rate the condition under the diagnostic code for a closely related disease or injury, by analogy. See 38 C.F.R. § 4.20. The Board finds the criteria under Diagnostic Code 7346 for hiatal hernia to be the most analogous, in terms of symptoms and anatomical location, to the combination of the Veteran’s GERD for rating purposes. Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive. Thus, all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met). Dysphagia is defined as difficulty in swallowing. Dorland’s Illustrated Medical Dictionary, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. In his hearing, he endorsed symptoms of pain in chest and throat, dysphagia, indigestion, and pyrosis at least 3 to 5 times weekly. He restricts his diet and sees his physician 3 times annually. He also has a protective mouth guard as the GERD has caused tooth erosion. He frequently loses his voice and is unable to speak. He coughs up blood approximately once or twice a month. In a January 2016 VA examination, the listed symptoms were reflux and pyrosis. No weight loss or bleeding was indicated. An August 2017 examination reflects the Veteran suffers from chronic pharyngitis as a symptom of uncontrolled GERD. In his October 2017 VA examination, the examiner indicated the Veteran experiences persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. He experiences 4 or more sleep disturbances caused by GERD annually. Nausea was indicated, with no material weight loss, vomiting, hematemesis, or melena with moderate anemia. The Veteran’s reported symptoms most closely approximate the 30 percent rating criteria as he experiences each symptom listed, and the evidence reflects considerable impairment of health as a result. While the Veteran did report hematemesis in his hearing, there is no evidence of material weight loss or vomiting. Thus, the Veteran is entitled to a 30 percent rating, but no higher, for his GERD. 5. Increased rating - left shoulder impingement syndrome with bursitis The Veteran currently has a 20 percent rating for his left shoulder disability. The Veteran’s left shoulder disability is rated under Diagnostic Codes 5019-5201 (for bursitis with limitation of motion of the arm). The terms “major” and “minor” are used in the rating criteria to refer to the dominant or nondominant upper extremity. 38 C.F.R. § 4.69. Here, the Veteran is right-handed. Therefore, his left shoulder is evaluated as minor. Under Diagnostic Code 5201, for limitation of motion of the non-dominant arm, a 20 percent rating is warranted for motion limited at the shoulder level. A 20 percent rating is also warranted for motion limited to midway between the side and shoulder level. A maximum 30 percent rating is warranted for motion limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The average range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71. In his January 2016 VA examination, the Veteran stated his shoulder bothers him intermittently; he has flare-ups while working in his yard or doing exercise. These flare-ups limit any overhead activity. His left shoulder flexion was to 90 degrees; abduction to 90 degrees; external rotation to 45 degrees; and internal rotation to 90 degrees. The examiner indicated the abnormal range of motion itself contributes to a functional loss by limiting overhead activities, carrying, and lifting. Pain was noted on all ranges of motion but did not cause or result in functional loss. There was evidence of tenderness. The examiner was unable to ascertain any limitation in terms of range of motion after repetitive use over time without mere speculation; thus, in that regard, the examination is inadequate as it does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). However, the examination was conducted during a flare-up, so the above-listed ranges of motion accurately reflect the Veteran’s limitations during a flare-up. In his October 2017 VA examination, the Veteran stated he had periodic flare-ups that have worsened. Even basic activities such as waking up or putting on a shirt can trigger cracking and pain. He has problems raising his arm overhead. According to the Veteran, during flare-ups he is unable to move his arm beyond 45 degrees. His left shoulder flexion was to 60 degrees; abduction to 50 degrees; external rotation to 30 degrees; and internal rotation to 70 degrees. The examiner indicated the abnormal range of motion contributes to a functional loss of activities with reach above horizontal level. Pain was noted on all ranges of motion. There was evidence of tenderness but no crepitus. Immediately following repetitive use over time, the examiner determined that pain, fatigue, and weakness limited the Veteran’s flexion to 55 degrees; abduction to 45 degrees; external rotation to 30 degrees; and internal rotation to 70 degrees. During a flare-up, pain, fatigue, and weakness limited flexion to 60 degrees; abduction to 50 degrees; external rotation to 30 degrees; and internal rotation to 70 degrees. Additional factors contributing to his disability were less movement than normal and weakened movement. He had no muscle atrophy but reduced muscle strength. In his hearing, the Veteran stated he could not hold his arm above 90 degrees, and that his bursitis has progressed to his mid-bicep. Treatment records reflect he experiences pain in the shoulder that occasionally “freezes.” Upon consideration of the evidence of record, the Veteran’s range of motion, at worst, is limited to midway between side and shoulder level (45 degrees). Thus, his disability is appropriately rated at 20 percent. There is no evidence of limitation to 25 degrees from the side; thus, a 30 percent rating is not warranted. No other diagnostic code is applicable as the evidence does not reflect scapulohumeral articulation or ankylosis, impairment of the humerus, scapula, or clavicle, or malunion. The Veteran’s claim for an increased rating is denied. In reaching this conclusion, the provisions provided in 38 C.F.R. §§ 4.40 and 4.45 have been considered and applied. 6. Increased rating - degenerative arthritis of the thoracolumbar spine The Veteran currently has a 10 percent rating for his degenerative arthritis of the thoracolumbar spine. The Veteran’s spine disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (Codes 5235 through 5242) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Diagnostic Code 5243), whichever results in the higher evaluation.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation applies when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation applies where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine.  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2).  Alternatively, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1).  In the Veteran’s January 2016 VA examination, he reported significant back pain impeding his ability to do basic activities such as house chores, reaching overhead, or exercising. His forward flexion was to 70 degrees, and his combined range of motion was to 170 degrees. The examiner was unable to ascertain additional limitations on ranges of motion following repetitive use over time without mere speculation. Thus, in that regard, the examination is inadequate pursuant to Sharp. Tenderness and guarding were indicated, but they did not result in an abnormal gait or spinal contour. No IVDS was indicated. The Veteran has radiculopathy associated with his spine disability for which he is service-connected and separately rated. No other neurologic abnormalities were indicated; however, the Board notes there is evidence in the record of fecal incontinence occurring shortly after the Veteran developed his spine disability. However, in a December 2016 rating decision, the Veteran was denied service connection as the evidence did not show his incontinence was related to his spine disability. In a June 2017 VA examination, the Veteran reported difficulty putting weight on his left leg and going up the stairs due to radiculopathy. He uses a cane intermittently and a brace when he leaves the house. His forward flexion was to 40 degrees with a combined range of motion of 95 degrees. This abnormal range of motion contributes to a functional loss with limited bending and lifting. Pain was noted on examination to cause a functional loss. No guarding or muscle spasms were noted. No neurologic abnormalities were noted, and IVDS was not indicated. Regarding range of motion immediately following repeated use over time, the examiner was unable to describe in terms of range of motion without resorting to mere speculation. As there is no indication the examiner sought to obtain information from other sources, the examination is inadequate in this regard pursuant to Sharp. In his October 2017 VA examination, a diagnosis of both degenerative arthritis of the spine and IVDS were listed. Flare-ups were reported at this examination, described as dull, sharp pain impeding his ability to bend front or back. He is unable to drive distances, sit for long periods of time, or lift anything heavy. His flexion was to 25 degrees with a combined range of motion of 85 degrees. Pain was noted on examination to cause a functional loss, and the Veteran’s limited range of motion results in difficulties bending forward to put on shoes or socks, retrieve an object from the ground, or twist and turn. Following repeated use over time and during a flare-up, the examiner determined the Veteran’s ranges of motion would be the same. Guarding was noted to result in an abnormal gait or spinal contour. Additional factors contributing to the disability were less movement than normal, weakened movement, IVDS, and increased muscle spasms with pain and limited range of motion. Regarding IVDS, the examiner indicated the Veteran had no episodes of acute signs and symptoms requiring prescribed bed rest and treatment in the past year. A September 2016 treatment record reflects worsening, severe back pain that is aggravated with extension and laying down. The record indicates the Veteran is restricted by 70 percent in flexion with near complete restriction in extension. In October 2016, the Veteran explained his back pain fluctuates in severity, but is worse with bending and exacerbated by activity. He had full muscle strength. February 2017 records reflect symptoms of spasms and limited range of motion when pain is severe. In December 2018, restrictions on range of motion were noted but not listed in terms of degrees. In July 2019, an antalgic gait was noted with full range of motion. In the Veteran’s hearing, he stated he experiences unbearable back pain with frequent flare-ups. He wears a brace and uses a cane. He stated he has extremely limited range of motion. The most probative evidence of record regarding the severity of the Veteran’s spine disability in terms of range of motion is the October 2017 examination. The examination findings indicate forward flexion of the thoracolumbar spine at 25 degrees, warranting a 40 percent rating under the criteria. A rating under the IVDS Formula would not be more beneficial as there is no evidence of incapacitating episodes requiring prescribed bedrest. As there is no evidence of ankylosis of the spine throughout the record, the Veteran is entitled to a 40 percent rating, but no higher. REASONS FOR REMAND Increased rating - tendon strain of the right fifth finger The Veteran currently has a noncompensable rating for his tendon strain of the right fifth (pinky) finger. Under Diagnostic Code 5230, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless of whether the affected hand is dominant or minor. Diagnostic Code 5230 does not provide for a compensable rating. 38 C.F.R. § 4.71a. While the applicable Diagnostic Code does not provide for a compensable rating based on limitation of motion, the evidence suggests possible peripheral nerve involvement as well as residual scarring. In his January 2016 VA examination, the Veteran endorsed pain and inability to make a fist, resulting in difficulty grasping objects. A 2 by 1 centimeter scar was noted to be healed and non-tender. In the October 2017 VA examination, the Veteran reported periods of pain, locking, and weakness. He stated he cannot make a complete fist and his grip is weak. Upon examination, he experienced pain, tenderness, and complete loss of grip. The examiner indicated no scar, yet the report reflects “non-tender scars from laceration.” In his hearing, the Veteran endorsed pain in his finger that shoots past his wrist. He has atrophy in the forearm. He explained that the tendon freezes intermittently and he is unable to bend it, which causes him to frequently drop objects. He endorsed painful scars. Given the reports of weakness, and an inability to bend his finger or make a fist, the Board finds an examination to assess neurological impairment of the hand is warranted. Similarly, as the Veteran has reported painful scarring related to the tendon, an examination for his scars is warranted. The matter is REMANDED for the following action: 1. Obtain a VA examination to identify and diagnose any neurological impairment related to the Veteran’s right tendon strain of the fifth finger. 2. Obtain a VA examination to identify and describe any scars related to the Veteran’s right tendon strain of the fifth finger. Michael Lane Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.