Citation Nr: 21001753 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-08 917 DATE: January 11, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for a right thigh scar from February 2, 2012, is granted. Entitlement to a 30 percent rating, but no higher, for headaches from February 2, 2012, is granted. Entitlement to a 20 percent rating, but no higher, for left upper extremity radiculopathy from February 2, 2012, is granted. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is denied. Entitlement to a 30 percent rating, but no higher, for a neck disability is granted. Entitlement to a rating in excess of 30 percent for peripheral vestibular disease rated is denied. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include a major depressive disorder and posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From February 2, 2012, the preponderance of the evidence shows that the right thigh scar is painful scar but it is not deep or causes limited motion in an area or areas exceeding 12 square inches (77 sq. cm.), it is not made up of three or four scars, and it does not otherwise impairs function. 2. From February 2, 2012, the preponderance of the evidence shows that the headaches cause characteristic prostrating attacks occurring on an average once a month over last several months, but they are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From February 2, 2012, the preponderance of the evidence shows that the left upper extremity radiculopathy causes mild incomplete paralysis, but not at least moderate incomplete paralysis, of the upper radicular group of nerves. 4. The preponderance of the evidence shows that the right upper extremity radiculopathy does not cause at least moderate incomplete paralysis of the upper radicular group of nerves at all times during the appeal. 5. The preponderance of the evidence shows that the neck disability is manifested by forward flexion of the cervical spine to less than 15 degrees when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups but not ankylosis or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12-month period at all times during the pendency of the appeal. 6. The 30 percent rating already assigned the Veteran’s peripheral vestibular disease under Diagnostic Code 8045 is the maximum rating available under this code section and given the nature and location of the disability the Board finds that it is not better rated under another Diagnostic Code. 7. The preponderance of the evidence shows that that the Veteran’s GERD is not manifested by adverse symptomatology that equates to at least a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. From February 2, 2012, the criteria for a 10 percent rating, but no higher, for a right thigh scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.118, Diagnostic Codes 7801 to 7805. 2. From February 2, 2012, the criteria for a 30 percent rating, but no higher, for headaches have been met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8100. 3. From February 2, 2012, the criteria for a 20 percent rating, but no higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.123, 4.124, 4.124a, Diagnostic Code 8510. 4. The criteria for a rating in excess of 20 percent for right upper extremity radiculopathy are not met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.123, 4.124, 4.124a, Diagnostic Code 8510. 5. The criteria for a 30 percent rating, but no higher, for a neck disability have been met at all times during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243. 6. The criteria for a rating in excess of 30 percent for peripheral vestibular disease are not met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.87, Diagnostic Code 6204. 7. The criteria for a rating in excess of 10 percent for GERD are not met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1984 to April 1985 and from November 2004 to April 2006 with service in Kuwait from December 2004 to February 2006. The Veteran also had almost 19 years of intervening service with a Reserve Component. In June 2018, the Board of Veterans’ Appeal (Board) remanded the appeal. In this regard, the Board finds that the post-Remand development complied with the Remand. The Board has reached this conclusion because, following the Veteran being provided VA examinations in April 2019 and August 2019 which are adequate to adjudicating the rating claims under all applicable Diagnostic Codes including taking into account the United States Court of Appeals for Veterans Claims (Court) holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), as well as after obtaining and associated with the record any outstanding medical record, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case in August 2020 that considered all evidence added to the record since it issued the January 2013 and December 2014 statements of the case (SOCs). Lastly, as to the claims for increased ratings for the right thigh scar, headaches, and left arm radiculopathy the Board has characterized these issues as they appear above because the claims have been pending since February 2, 2012. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Also see AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). The Increased Rating Claims The Veteran claims, in substance, that he is entitled to higher ratings for his service connected right thigh scar, headaches, left and right arm radiculopathy, neck disability, peripheral vestibular disease, and GERD at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. The right thigh scar The right thigh scar is rated as noncompensable before April 16, 2012, and 10 percent disabling from April 16, 2012, under 38 C.F.R. § 4.118, Diagnostic Code 7802-7804. As noted above, because the appeal has been pending since the Veteran filed his claim for an increased rating on February 2, 2012, the Board will consider the appropriate rating to assign his right thigh scar at all times from February 2, 2012. See Hart, supra; Fenderson, supra; Also see AB, supra. Under the rating criteria that has been in effect since before the Veteran filed his claim, Diagnostic Code 7801 provides that, scars, other than the head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, scars, other than the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides that unstable or painful scars are rated as follows: 10 percent for one or two scars; 20 percent for three or four scars; and 30 percent for five or more scars. 38 C.F.R. § 4.118. Diagnostic Code 7805 directs that any other disabling effects of a scar not described in Code 7802 or 7804, are to be evaluated under an appropriate Diagnostic Code. Id. i. Entitlement to at least a compensable rating for the right thigh scar from February 2, 2012 As to a compensable rating for the right thigh scar under Diagnostic Code 7804, the Board notes that in writing to VA the Veteran competently and credibly complained of, in substance, scar pain. See Davidson, supra. Moreover, the September 2012 VA examiner opined that the scar was painful. On the other hand, the April 2019 VA examiner opined that the Veteran’s scar was not painful. Given this record the Board finds that the evidence, both positive and negative, as to whether the Veteran scar is painful is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that it is. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. Moreover, the Board notes that the Court held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, given this record and with again granting the Veteran the benefit of any doubt in this matter, the Board finds that the criteria for a 10 rating for the right thigh scar have been met under Diagnostic Code 7804 at all times from February 2, 2012. 38 C.F.R. § 4.118; Owens, supra; Tatum, supra; Young, supra’ Also see 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz, supra; Gilbert, supra. ii. Entitlement to at least a rating in excess of 10 percent for the right thigh scar from February 2, 2012 As to a rating in excess of 10 percent for the right thigh scar from February 2, 2012, under Diagnostic Code 7801, the Board notes that at neither the September 2012 or the April 2019 VA examination or in any of the treatment records is this one scar, standing alon, shown to be deep or cause limited motion in an area or areas exceeding 12 square inches (77 sq. cm.). In fact, the September 2012 VA examiner opined that the scar’s approximate total area was 2.0 sq. cm. and the April 2019 VA examiner opined that the scar’s approximate total area was 1.5 sq. cm. and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, neither the Veteran nor his representative has provided VA with alternative measurements as to the size of the right thigh scar. See Davidson, supra. Therefore, the Board finds that the preponderance of the evidence shows that the right thigh scar is not deep or cause limited motion in an area or areas exceeding 12 square inches (77 sq. cm.). See Owens, supra. Accordingly, the Board finds that a rating in excess of 10 percent for the right thigh scar is not warranted under Diagnostic Code 7801 at any time from February 2, 2012. See 38 C.F.R. § 4.118; Fenderson, supra; Hart, supra. As to a rating in excess of 10 percent for the right thigh scar under Diagnostic Code 7802, the Board notes that the 10 percent rating already in place for it is the maximum rating possible under Diagnostic Code 7802. Accordingly, the Board finds that a rating in excess of 10 percent for the right thigh scar is not warranted under Diagnostic Code 7802 at any time from February 2, 2012. See 38 C.F.R. § 4.118; Fenderson, supra; Hart, supra. As to a rating in excess of 10 percent for the right thigh scar under Diagnostic Code 7804, the Board notes that the record on appeal, including the September 2012 and April 2019 VA examinations, are uniform in showing that the Veteran has only the one scar. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran’s right thigh scar does not meet the criteria for an increased rating under Diagnostic Code 7804. See Owens, supra. Accordingly, the Board finds that a rating in excess of 10 percent for the right thigh scar is not warranted under Diagnostic Code 7804 at all times from February 2, 2012. See 38 C.F.R. § 4.118; Fenderson, supra; Hart, supra. As to ratings in excess of 10 percent for the right thigh scar under Diagnostic Code 7805, the Board notes that it had never been shown to produce any other functional impairment. In fact, the September 2012 and April 2019 VA examiners opined that it had no functional impact and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also notes that the Veteran, in neither his writing to VA nor in his statements to his healthcare providers, claimed that the right thigh scar resulted in any other limitation of function. See Davidson, supra. Therefore, the Board finds that the preponderance of the evidence of record shows that the right thigh scar does not produce any other functional impairment. See Owens, supra. Accordingly, the Board finds that a rating in excess of 10 percent for the right thigh scar is also not warranted under Diagnostic Code 7805 at all times from February 2, 2012. See 38 C.F.R. § 4.118; Fenderson, supra; Hart, supra. b. Headaches The Veteran’s headaches are rated as 10 percent disabling before April 16, 2012, and 30 percent disabling from April 16, 2012, under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As noted above, because the appeal has been pending since the Veteran filed his claim for an increased rating on February 2, 2012, the Board will consider the appropriate rating to assign his headaches at all times from February 2, 2012. See Hart, supra; Fenderson, supra; Also see AB, supra. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating. With the above criteria in mind, the Board notes that at the September 2012 and April 2019 VA examination the Veteran reported that he continued to have problems with headaches with bilateral 6/10 temporal pressure pain which worsened with bending and pain four times a day. The Veteran treated his headaches with sumatriptan as needed. On examination, it was opined that the Veteran had the following headache symptoms: pulsating or throbbing head pain; pain worsening with physical activity; nausea; and sensitivity to light. It was next reported that the Veteran’s typical headaches lasted less than one day. The examiners thereafter opined that the Veteran had characteristic prostrating attacks “with less frequent attacks” over several months but not productive of severe economic inadaptability. Lastly, the examiners opined that with prostrating pain the Veteran had the following restrictions: chores-prevented shopping; prevented exercises; prevented sports; prevented recreation; prevented traveling; prevented feeding; prevented bathing; prevented dressing; prevented toileting; and prevented grooming. As noted above, the Court held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum, supra; Young, supra. Given this record, and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that adverse symptomatology reported by the September 2012 and April 2019 VA examiners, when taken together, shows that the headaches cause at least characteristic prostrating attacks occurring on an average once a month over last several months. 38 U.S.C. § 5107; Gilbert, supra. Accordingly, the Board finds that the criteria for a 30 rating for the headaches have been met under Diagnostic Code 8100 at all times from February 2, 2012. 38 C.F.R. § 4.132a; Owens, supra; Tatum, supra; Young, supra. As to a rating in excess of 30 percent for the headaches from February 2, 2012, the Board notes that the September 2012 and April 2019 VA examiners both opined that the Veteran’s headaches did not cause severe economic inadaptability. See Colvin, supra. Similarly, while the Veteran’s treatment records periodically document his complaints and treatment for headaches, none of these treatment records show that his headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Next, the Board notes that in writings to VA and at his VA examinations the Veteran reported on observable adverse manifestations of his service-connected headaches. See Davidsons, supra. However, the Board finds that the Veteran is not competent to provide an opinion as to whether his service-connected headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability because this is a medical opinion and he does not have the required training. Id. The Board also finds that the opinions provided by the VA examiners as to the severity of his headaches is more probative than the lay claims because a healthcare professional has greater medical expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Given the above, the Board finds that the September 2012 and April 2019 VA examiners opinions as to the severity of the Veteran’s headaches the most probative evidence of record because they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by the evidence of record and not contradicted by any other evidence of record. See Owens, supra; Colvin, supra. Accordingly, the Board finds that at all times from February 2, 2012, the preponderance of the evidence shows that the Veteran’s headaches are not manifested by at least very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Therefore, the Board finds that the criteria for a rating in excess of 30 percent for headaches have not been mate at all times from February 2, 2012. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Fenderson, supra; Hart, supra. c. Left and right upper extremity radiculopathy The left and right upper extremity radiculopathy are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510 with the left upper extremity radiculopathy rated as noncompensable before April 16, 2012, and 20 percent disabling from April 16, 2012, and the right upper extremity radiculopathy rated as 20 percent disabling at all times during the appeal. As noted above, because the appeal has been pending since the Veteran filed his claim for an increased rating on February 2, 2012, the Board will consider the appropriate rating to assign his left and right upper extremity radiculopathy at all times from February 2, 2012. See Hart, supra; Fenderson, supra; Also see AB, supra. In this regard, Diagnostic Code 8510 provides that mild incomplete paralysis of the upper radicular group of nerves is rated as 20 percent disabling on the major side and on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group is rated as 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Initially, the Board notes that the VA examiners reported that the Veteran is ambidextrous. See, e.g., VA examinations dated in April 2016, April 2019, and August 2019. However, because the regulations provide for only one hand can be the dominant hand and because, as will be seen below, the both upper extremities symptomatology is the same, the Board will treat the Veteran as right handed for the purpose of this adjudication. i. Entitlement to at least a compensable rating for left upper extremity radiculopathy from February 2, 2012 As to at least a compensable rating for left upper extremity radiculopathy from February 2, 2012, the Board notes that at the September 2012 VA examination the Veteran had decease sensation in the hand/fingers, mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Thereafter, at the April 2019 and August 2019 VA examinations the Veteran had decease sensation in the shoulder, inner/outer forearm, and hand/fingers and his deep tendon reflexes were 1+ (hypoactive) at his biceps, triceps, and brachioradialis. Lastly, at the August 2019 VA examination it was also noted that the Veteran had mild paresthesias and/or dysesthesias and well as mild numbness and Phalen’s sign were positive. The August 2019 VA examiner also noted that the April 2018 electromyography (EMG) showed mild impairment and opined that the Veteran had mild incomplete paralysis of the median nerve. As noted above, the Court has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” See Tatum, supra. Given this record, the Board finds that while the term “mild” incomplete paralysis is not defined by regulation it nonetheless equates to adverse neurological symptomatology seen at the above VA examinations-decease sensation and 1+ (hypoactive) as well as mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and/or mild numbness and/or a positive Phalen’s sign. See Owens, supra; Colvin, supra. Tellingly, the April 2018 EMG and the April 2019 VA examination report both included opinions that the left upper extremity radiculopathy was mild in severity. Id. Therefore, because when evaluating the severity of the Veteran’s service connected disability it must consider his disability at all times during the appeal, which in this appeal runs from February 2, 2012, the Board finds that the preponderance of the evidence shows that he meets the criteria for at least 20 percent ratings for his left upper extremity radiculopathy under Diagnostic Code 8510 at all times from February 2, 2012. See 38 C.F.R. § 4.124a; Fenderson, supra; Hart, supra; Tatum, supra; Also see 38 U.S.C. § 5107; Gilbert, supra. ii. Entitlement to ratings in excess of 20 percent left and right upper extremity radiculopathy from February 2, 2012 As to ratings in excess of 20 percent for left and right upper extremity radiculopathy from February 2, 2012, as noted above, the Veteran’s left and right upper extremity adverse neurological symptomatology was limited to the decease sensation in the hand/fingers, mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness at the September 2012 VA examination; decease sensation in the shoulders, inner/outer forearms, and hands/fingers and deep tendon reflexes being 1+ (hypoactive) at his biceps, triceps, and brachioradialis at the April 2019 and August 2019 VA examinations; and the mild paresthesias and/or dysesthesias and well as mild numbness and positive Phalen’s sign at the August 2019 VA examination. See Colvin, supra. The Board also notes that the September 2012, April 2019, and August 2019 VA examiners also opined that the Veteran did not have muscle atrophy and his muscle strength was normal at 5/5. Moreover, the September 2012 VA examiner opined that upper extremity deep tendon reflexes were normal in the upper extremities and sensation was normal in the shoulders as well as the inner/outer forearms. Likewise, the August 2019 VA examiner opined that there were no trophic changes. Id. Furthermore, the August 2019 VA examiner both noted that the April 2018 EMG showed only mild impairment and opined that the Veteran had mild incomplete paralysis of the median nerve bilaterally and these medical opinions are not contradicted by any other medical evidence of record. Id. Lastly, while treatment records document the Veteran’s complaints and treatment for radiculopathy, nothing in these records shows his adverse symptomatology to be worse than what was reported by the above VA examiners. See Colvin, supra. The Board finds that while the term “moderately” incomplete paralysis is not defined by regulation it must equate to more serve symptomatology than the mild adverse symptomatology reported by all of the above VA examiners. See Owens, supra; Colvin, supra. The Board also finds it significant that the VA examiners uniformly opined that there was no muscle atrophy and muscle strength was normal at 5/5, the August 2019 VA examiner opined that there were no trophic changes, and the August 2019 VA examiner also noted that the April 2018 EMG showed mild impairment as well as opined that the Veteran only has mild incomplete paralysis of the median nerve bilaterally. Id. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran’s does not meet the criteria for ratings in excess of 20 percent for his left and right upper extremity radiculopathy under Diagnostic Code 8510 at any time from February 2, 2012. See 38 C.F.R. § 4.124a; Fenderson, supra; Hart, supra. d. The neck disability The Veteran’s neck disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, if the combined range of motion of the cervical spine is not greater than 170 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 30 percent rating if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine; a 40 percent rating if there is unfavorable ankylosis of the entire cervical spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal neck motion is flexion to 45 degrees, extension to 45 degrees, right and left lateral flexion to 45 degrees, and right and left rotation to 80 degrees. 38 C.F.R. § 4.71a, Plate V. The Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Initially, in adjudicating below whether the Veteran meets the criteria for a higher evaluation for his neck disability the Board has not overlooked the Court’s holdings in Correia, supra, and Sharp, supra. Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the April 2019 examination provided VA with medical opinion evidence adequate to rate the Veteran’s disability when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As to a rating in excess of 20 percent for the neck disability, the Board finds that when considering the Veteran’s complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he meets the criteria for at least the next higher, 30 percent, rating at all times during the appeal. The Board has reached this conclusion because, while flexion of the cervical spine was 20 degrees at the September 2012 VA examination, it was 10 degrees at the April 2019 VA examination (i.e., less than the 15 degrees required for an increased rating). 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra; Tatum, supra; Young, supra. However, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for the neck disability under the General Rating Formula for Disease and Injuries of the Spine at any time during the appeal because the record is negative for a diagnosis of ankylosis of the cervical spines. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra. In fact, the April 2019 VA examiner opined that the Veteran did not have ankylosis and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds that the Veteran is not competent to provide this diagnosis because he does not have the required medical training. See Davidson, supra. In the absence of ankylosis, the Board may not rate his neck disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, a rating in excess of 30 percent is not warranted for the Veteran’s neck disability at any time during the pendency of the appeal due to ankylosis. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 30 percent for his neck disability under the Formula for Rating Intervertebral Disc Syndrome at any time during the appeal. The Board has reached this conclusion because the most probative evidence of record shows that the neck disability does not cause at least a total of 4 weeks of incapacitating episodes during any 12-month period during the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In fact, the April 2019 VA examiner opined that the Veteran had no more than 2 weeks of incapacitating episodes and this opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, the Board finds service treatment records are negative for evidence of 4 or more weeks of incapacitating episodes during any 12-month period during the appeal and the Veteran as a lay person is not competent to provide this medical finding because he does not have the required training. See Davidson, supra; Colvin, supra. Consequently, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s neck disability at any time during the pendency of the appeal due to incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. e. The peripheral vestibular disease The Veteran’s peripheral vestibular disease is rated as 30 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6204. Under Diagnostic Code 6204, a 10 percent evaluation is warranted for peripheral vestibular disorders with occasional dizziness and a 30 percent evaluation will be assigned with dizziness and occasional staggering. 38 C.F.R. § 4.88a. A note to Diagnostic Code 6204 explains that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under Diagnostic Code 6204 and that hearing impairment with suppuration is to be separately rated and combined. Given the above, the Board finds that a higher rating is not warranted for the Veteran’s peripheral under Diagnostic Code 8045 because the 30 percent rating already assigned the disability is the maximum rating available and given the nature and location of the disability the Board finds that it is not better rated under another Diagnostic Code. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit); Butts, supra. f. GERD The Veteran’s GERD is rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7346. Diagnostic Code 7346 provides a compensable, 10 percent rating, if the GERD’s adverse symptomatology equates to a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. A 30 percent rating is warranted if adverse symptomatology equates to a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. With the above criteria in mind, at the December 2011 VA examination the Veteran reported having a problem with chest pain/burning sensation treated with Protonix and Prilosec and/or Lansoprazole with a fair response but diarrhea due to the medications. The Veteran had a history of heartburn/pyrosis and regurgitation. It was opined that the Veteran’s medical history was negative for a hospitalization, surgery, trauma, neoplasm, nausea, vomiting, dysphagia, distress, hematemesis, melena, and esophagal dilation. It was opined that while his weight was 10 percent less than his baseline this weight loss was not significant. Next, it was opined that GERD caused mild problems with chores, shopping, exercise, sports, and recreation; moderate problems with travel; and severe problems with feeding but no problems with bathing, dressing, toileting, and grooming. Lastly, it was opined that his general health was fair. At the April 2019 VA examination the Veteran reported that he continued to have problems with an epigastric burning sensation, reflux, and nausea which he treats with Esomeprazole (40 mg daily). It was opined that the Veteran’s GERD caused reflux regurgitation, sleep disturbance (4 or more a year), and nausea (2 a year). It was next noted that the GERD did not cause esophageal stricture or spasm of the esophagus. Lastly, it was opined that the Veteran did not have any other symptoms. The Board also notes that treatment records document the Veteran’s periodic complaints and treatment for GERD. However, the Board finds that nothing in these treatment records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin, supra. In particular, the Board notes that nothing in these records show that the Veteran’s GERD causes considerable impairment of health as required for a higher, 30 percent, rating under Diagnostic Code 7346. 38 C.F.R. § 4.114. Similarly, the Board has not overlooked the various lay statements found in the record. However, while the Veteran is competent and credible to report on what he can see and feel, the Board finds more probative the opinions provided by the medical experts at the VA examinations as to the severity of his GERD. See Davidson, supra; Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In summary, the record shows that the Veteran takes medication to control his GERD as well as document, at its worst, his complaints of heartburn/pyrosis, regurgitation, nausea, and sleep disturbance as well as his have some problems with weight loss. However, the December 2011 VA examiner specifically opined that the Veteran’s GERD did not cause dysphagia, his weight loss was not significant, and his general health was fair, and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Therefore, despite the Veteran’s adverse symptomatology, the Board finds that the most probative evidence of record shows that hiss GERD does not causes dysphagia and considerable impairment of health. See Owens, supra. Given the above adverse symptomatology, the Board finds that most probative evidence of record shows that the criteria for a rating in excess of 10 percent for GERD are not met at all times during the pendency of the appeal. See 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7346; Owens, supra; Fenderson, supra; Hart, supra. Conclusion In reaching the above conclusions the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. It is the Veteran’s statements that in many cases provide the basis for the current evolutions (if there were no problems, there would be no basis for compensation at all). Some evidence in this case does not support the current findings. In any event, the Board finds the VA examiners’ opinions as to the Veteran’s adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training and their opinions are supported by the information found in his treatment records. See Black, supra. In any event, it is important for the Veteran to understand that the above findings do not suggest, in any way, that the Veteran does not have problems because of his service-connected disabilities. The above assigned disability ratings reflect the many problems caused by his disabilities. However, the only question in this case is the degree of the problems during, in some cases, a limited time period. In reaching all the above conclusions the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims to the extent outlined above, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include a major depressive disorder and PTSD is remanded. As to the claim of service connection for an acquired psychiatric disorder, in June 2018 the Board remanded the claim to obtain needed etiology opinions to include whether the Veteran’s disability was caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). However, the Board notes that since the June 2018 Remand the Court changed its’ definition of aggravation to know include temporary flare-ups. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Therefore, the Board finds that the April 2019 VA aggravation opinion is not adequate to adjudicate the Veteran’s claim because it applied the old definition of aggravation and a remand is required to obtain a new etiology opinion. See 38U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. As to the claim for a TDIU, while the Veteran claims that the problems caused by his service-connected disabilities (i.e., headaches, peripheral vestibular disease, sleep apnea, a neck disorder, left arm radiculopathy, right arm radiculopathy, GERD, right thigh scar, sinusitis, left foot plantar fasciitis, and allergic rhinitis) prevent him from working, from the existing record the Board is not able to ascertain when, if ever, they prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). In fact, the only employment information found in the record at this time are the reports by the 2011 and 2012 VA examiners in which it was noted that the Veteran was employed at those times. See VA examinations dated in December 2011 and September 2012. Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). These issues are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to this claim. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. Obtain a new medical opinion as to the origins of the Veteran’s acquired psychiatric disorder to include any qualifying chronic disability under 38 C.F.R. § 3.317. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note that such review was performed. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a) Provide a current diagnosis for all acquired psychiatric disorders. If the Veteran does not now have, but previously had, any such disorders, when did that disorder resolve? b) For each diagnosed disorder, is it at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service including his documented service with a Reserve Component as well as in the Southwest Asia theater of operations? c) As to any psychosis, provide an opinion as to whether it manifested in the first year following any period of qualifying service. d) For each diagnosed disorder, is it at least as likely as not that it was caused by any service-connected disability? e) For each diagnosed disorder, is it at least as likely as not that it was aggravated by any service-connected disability? f) If a nexus to his service or an already service-connected disability cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing the requested opinions, the examiner should comment on the Veteran’s competent lay reports. In providing answers to the above questions the examiner should be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.