Citation Nr: 21004264 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-14 226A DATE: January 26, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for residuals status post left shoulder acromioclavicular (AC) joint separation (hereinafter left shoulder condition) is denied. Entitlement to an initial rating in excess of 10 percent for thoracolumbar spine strain with degenerative joint disease (hereinafter lumbar spine condition) is denied. Entitlement to an initial rating in excess of 10 percent for cervical spine strain with degenerative joint disease (hereinafter cervical spine condition) is denied. REMANDED Entitlement to an initial rating in excess of 30 percent prior to October 18, 2019 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 40 percent for traumatic brain injury (TBI) with photophobia is remanded.   FINDINGS OF FACT 1. The Veteran’s left shoulder condition results in painful limitation of motion midway between side and shoulder level but is not shown to be manifested by nonunion or dislocation of the clavicle or scapula, a humerus impairment, or ankylosis. 2. The Veteran’s lumbar spine condition has been manifested by forward flexion of the thoracolumbar spine at most limited to 75 degrees with pain, with no localized tenderness resulting in an abnormal gait, with no muscle spasms or guarding, with no ankylosis, and without incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12 month period. 3. The Veteran’s cervical spine condition has been manifested by forward flexion of the cervical spine to 35 degrees with pain, with no localized tenderness resulting in an abnormal gait, with no muscle spasms or guarding, with no ankylosis, and without incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12 month period. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for left shoulder condition are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5201 (2020). 2. The criteria for an initial rating in excess of 10 percent for lumbar spine condition are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2020). 3. The criteria for an initial rating in excess of 10 percent for cervical spine condition are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2020).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1998 to April 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for an increased rating for TBI with photophobia was previously before the Board in May 2018 when the Board remanded it for further development. Subsequently, the Veteran testified before the Board at a hearing held by the undersigned in July 2018. A transcript of the hearing is of record. Thereafter, the Board remanded the Veteran’s claims for increased ratings for left shoulder condition, lumbar spine condition, cervical spine condition, PTSD, and TBI with photophobia in November 2018 for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require “objective” evidence but can be satisfied with lay and other non-medical evidence. Id. at 429.  1. Entitlement to an initial rating in excess of 20 percent for left shoulder condition is denied. The Veteran and his representative contend the Veteran is entitled to a rating in excess of 20 percent for his left shoulder condition. See Informal Hearing Presentation, November 2020; see also Board Hearing Transcript, July 2018. The Veteran has been assigned a 20 percent rating for his service-connected left shoulder condition pursuant to the criteria of Diagnostic Code 5201. 38 C.F.R. § 4.71a. The May 2019 VA examination report reflects that the Veteran is right handed. Therefore, the Veteran’s left upper extremity is his minor upper extremity. Under Diagnostic Code 5201, for the minor extremity, a 20 percent rating is assigned for limitation of motion at shoulder level, a 20 percent rating is assigned for limitation of motion midway between the side and shoulder level, and a 30 percent rating is assigned for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. 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). Diagnostic Code 5200 evaluates ankylosis of the shoulder. The record contains no evidence of shoulder ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. 38 C.F.R. § 4.71a. Diagnostic Code 5202 evaluates impairment of the humerus. The record contains no evidence of impairment of the humerus, and the Veteran has not described symptoms that are suggestive of impairment of the humerus. Therefore, this Diagnostic Code is not applicable and will be discussed no further. 38 C.F.R. § 4.71a. Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. Under Diagnostic Code 5203, for the major upper extremity, a 20 percent rating is assigned for dislocation of the clavicle or scapula, or nonunion with loose movement. 38 C.F.R. § 4.71a. Turning to the relevant medical evidence of record, the Veteran attended a VA examination in January 2012 for an evaluation of his left shoulder condition. The VA examiner diagnosed the Veteran with trauma left shoulder with first degree AC separation residual. Range of motion testing revealed the Veteran had flexion to 160 degrees with pain, abduction to 170 degrees with pain, external rotation to 90 degrees without pain, and internal rotation to 90 degrees without pain. With repetition of motion, there was no loss of motion secondary to pain, weakness, additional limitation of joint function, or lack of endurance. The Veteran reported that his shoulder pops with associated pain, and he reported pain with flexion when working above his head and pain working above shoulder level. The Veteran reported no flare-ups or incapacitating episodes. The Veteran underwent left shoulder surgery in August 2018 that consisted of glenohumeral joint debridement with microfracture of the humeral head, biceps tenodesis, and subdeltoid bursectomy. The Veteran attended an additional VA examination in May 2019 for an evaluation of his left shoulder condition. The VA examiner diagnosed the Veteran with AC joint separation. Range of motion testing revealed the Veteran had flexion to 160 degrees, abduction to 160 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The Veteran had pain in all planes of motion, and the VA examiner noted that the Veteran’s range of motion itself contributed to functional loss in the form of difficulty with lifting, pushing, and pulling. The Veteran had pain with weight bearing, and there was objective evidence of crepitus. The Veteran had no additional loss of range of motion upon repetitive use testing. The VA examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time, and the examiner was able to describe in terms of range of motion. With repeated use, the examiner estimated flexion to 150 degrees, abduction to 150 degrees, external rotation to 65 degrees, and internal rotation to 65 degrees. The VA examiner noted that pain significantly limited the Veteran’s functional ability during flare-ups, and the examiner was able to describe in terms of range of motion. During flare-ups, the estimated flexion to 150 degrees, abduction to 150 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The examiner noted that additional contributing factors to disability are less movement than normal, weakened movement, and difficulty using the left shoulder during flare ups. The Veteran had reduced strength in the left shoulder at 4/5 with forward flexion and abduction. The examiner noted the Veteran did not have ankylosis or an impairment of the humerus. The examiner stated that the functional impact of the Veteran’s left shoulder condition is that the Veteran would have difficulty lifting, pushing, and pulling. The Veteran reported pain and decreased range of motion in the left shoulder, which causes difficulty doing anything with his left arm. He reported no flare-ups. The Veteran attended an additional VA examination in October 2019. The VA examiner diagnosed the Veteran with AC joint separation, labral tear, glenohumeral joint osteoarthritis, and AC joint osteoarthritis. Range of motion testing revealed the Veteran had flexion to 60 degrees, abduction to 40 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. The Veteran had pain in all planes of motion, and the VA examiner noted that the Veteran’s range of motion itself contributed to functional loss in the form of functional loss in flexion, abduction, and external rotation. The examiner noted that the pain with range of motion did not result in functional loss. The Veteran had pain with weight bearing, and there was objective evidence of crepitus. There was no objective evidence of localized tenderness or pain on palpation of the left shoulder joint. The Veteran had no additional loss of range of motion upon repetitive use testing. The VA examiner noted that pain, weakness, and lack of endurance significantly limited the Veteran’s functional ability with repeated use over time. The VA examiner noted that pain, weakness, and lack of endurance significantly limited the Veteran’s functional ability during flare-ups. The examiner noted that an additional contributing factor to disability is less movement than normal. The Veteran had normal strength in the left shoulder with forward flexion and abduction. The examiner noted the Veteran did not have ankylosis or an impairment of the humerus. The examiner stated that the functional impact of the Veteran’s left shoulder condition is that the Veteran would have a decreased ability to function overhead or carry more than 10 pounds. The Veteran reported limited range of motion and chronic pain. He reported difficulty lifting objects. The Veteran reported moderate to severe flare-ups with overuse of the left upper extremity. He reported the flare-ups last 2 to 3 days and sometimes 10 days or more. He reported nothing alleviates the flare-ups, but he also reported that his medications occasionally alleviate the flare-ups. In addition to the medical evidence above, the Veteran has attended physical therapy for his left shoulder condition at multiple periods during the appeal period. Furthermore, a June 2019 VA treatment record reflects that the Veteran underwent multiple epidural injections. In his November 2012 Notice of Disagreement and April 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran reported major difficulty lifting his arm, that all motion results in acute pain regardless of degree of movement, difficulty carrying anything, and that he can’t use his arm to lift much more than a cup of coffee. Furthermore, at the July 2018 Board hearing, the Veteran testified that he has limited motion in the left shoulder, he loses strength moving his arm forward, it hurts most going forward and to the side, his shoulder pops and cracks, there is stiffening, and he cannot do pushups or exercise the shoulder. The Veteran’s left shoulder disability has manifested primarily in limited motion and pain. A preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 20 percent. Under Diagnostic Code 5201, a 30 percent rating is assigned for limitation of motion to 25 degrees from the side. There has been no point during the appeal period where the Veteran’s left shoulder range of motion has been limited to less than 25 degrees from the side; indeed, at worst, the Veteran’s flexion has been 60 degrees and abduction has been measured to 40 degrees. The Board acknowledges that the Veteran underwent left shoulder surgery during the appeal period in August 2018; however, a March 2018 VA treatment note leading up to the surgery reflects that the Veteran had full range of motion with pain. Furthermore, a temporary 100 percent rating for convalescence under 38 C.F.R. § 4.30 is not warranted following the August 2018 surgery as the medical evidence of record, including the August 2018 discharge instructions, does not reflect there was a period of at least one month of convalescence. Additionally, as noted above, the VA examinations after the shoulder surgery showed at most flexion limited to 60 degrees and abduction limited to 40 degrees. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran’s complaints of pain and functional loss as a result of his left shoulder condition, notably his difficulty with lifting, carrying, and movement, as reflected in the VA examination reports and the statements addressed above. However, when considering the Veteran’s functional loss and the Veteran’s reports of pain and functional limitations during flare ups, the medical evidence of record shows that the Veteran was able to move the left arm to 60 degrees for flexion and 40 degrees for abduction. The Veteran’s flare-ups do not in itself show further functional impairment, but rather indicates the very symptoms and functional impairment upon which the 20 percent rating is already assigned. Therefore, the evidence does not more nearly approximate that his motion was limited to 25 degrees from the side. Thus, a rating in excess of 20 percent is not warranted. A 20 percent rating is the maximum evaluation under Diagnostic Code 5203; therefore, Diagnostic Code 5203 would not entitle him to a rating in excess of 20 percent. As is noted above, the evidence of record does not reflect the Veteran has ankylosis or impairment of the humerus; therefore, a rating in excess of 20 percent is not available under Diagnostic Codes 5200 or 5202. In sum, the Board finds the criteria for a rating in excess of 20 percent for the Veteran’s service-connected left shoulder condition are not met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial rating in excess of 10 percent for lumbar spine condition is denied. The Veteran and his representative contend the Veteran is entitled to a rating in excess of 10 percent for his lumbar spine condition. See Informal Hearing Presentation, November 2020; see also Board Hearing Transcript, July 2018. The Veteran’s lumbar spine condition has been assigned a 10 percent rating throughout the appeal period under hyphenated Diagnostic Code 5243-5242. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes indicate that the Veteran’s lumbar spine condition is rated, by analogy, under the criteria for intervertebral disc syndrome (IVDS) (Diagnostic Code 5243) and degenerative arthritis of the spine (Diagnostic Code 5242). The Veteran’s lumbar spine condition can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasms, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal; or, vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted 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 rating is warranted 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 rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (1) provides that for purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which 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. Turning to the evidence of record, the Veteran attended a VA examination in January 2012 for an evaluation of his lumbar spine. Range of motion testing revealed the Veteran had forward flexion to 90 degrees with pain from 85 to 90 degrees and extension to 15 degrees with pain. He had left lateral flexion to 25 degrees without pain and right lateral flexion to 15 degrees without pain. He had left and right lateral rotation to 30 degrees without pain. The Veteran had no additional loss of range of motion upon repetitive use testing. The Veteran reported constant upper back pain with flare-ups three to four times a week. He reported no frank flare ups or incapacitating episodes, but related experiencing soreness throughout the day. He indicated that that mid-back pain flares up three to four times a week and radiates to the lower lumbar area for three to four hours almost daily. A January 2013 lumbar spine MRI showed minimal changes at the L3-L4 level with minimal left foraminal disc protrusion and annular fissure and mild degenerative changes at the L4-L5 level with right foraminal annular fissure. There was also mild bilateral lateral recess stenosis and mild bilateral neural foraminal narrowing at L4-L5. A November 2017 lumbar spine MRI showed mild degenerative changes at L3-L4 and L4-L5, minimally progressed since 2013, without high-grade canal or neuroforaminal stenosis. The Veteran attended an additional VA examination in May 2019 for an evaluation of his lumbar spine condition. Range of motion testing revealed the Veteran had forward flexion to 85 degrees without pain and extension to 25 degrees without pain. He had left and right lateral flexion and rotation to 25 degrees without pain. The examiner noted that range of motion itself did not contribute to functional loss. The Veteran had no localized tenderness or pain on palpation in the thoracolumbar spine. There was no pain with weight bearing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran had no additional loss of function or range of motion upon repetitive use testing. The VA examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time, and the examiner was able to describe in terms of range of motion. With repeated use, the examiner estimated forward flexion to be 80 degrees and all other planes of motion to be 20 degrees. The VA examiner noted that pain significantly limited the Veteran’s functional ability during flare-ups, and the examiner was able to describe in terms of range of motion. During flare-ups, the examiner estimated forward flexion to be 75 degrees and all other planes of motion to be 15 degrees. The examiner noted that additional contributing factors to disability are disturbance of locomotion, interference with standing, described as difficulty walking and standing during flare ups. The Veteran had reduced muscle strength throughout of 4/5 and no muscle atrophy. The Veteran had no ankylosis and no IVDS. The Veteran reported constant chronic low back pain. He reported he treated the pain with nonsteroidal anti-inflammatory drugs and physical therapy. The Veteran reported flare-ups consisting of pain. He reported no functional loss. The Veteran attended an additional VA examination in October 2019 for an evaluation of his lumbar spine condition. Range of motion testing revealed the Veteran had forward flexion to 80 degrees with pain and extension to 30 degrees without pain. He had left and right lateral flexion and rotation to 30 degrees without pain. The examiner noted that range of motion itself did not contribute to functional loss. The Veteran had no localized tenderness or pain on palpation in the thoracolumbar spine. There was no pain with weight bearing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran had no additional loss of function or range of motion upon repetitive use testing. The VA examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time. The VA examiner noted that pain significantly limited the Veteran’s functional ability during flare-ups. The examiner noted that there were no additional contributing factors to disability. The Veteran had normal muscle strength throughout and no muscle atrophy. The Veteran had no ankylosis. The examiner noted that the Veteran had IVDS, but that the Veteran had no episodes of acute signs and symptoms due to IVDS that required physician prescribed bed rest in the 12 months preceding the examination. The examiner noted that the functional impact of the Veteran’s lumbar spine disability is that he would have a decreased ability to bend forward repeatedly due to back pain and would need to undergo frequent position changes. The Veteran reported current low back pain, stiffness, sciatica, and chronic pain. He reported being unable to lift things and having difficulty with bending, squatting, and sitting for long periods. The Veteran reported flare-ups that occur when he lifts over 10 pounds or squats or bends. He reported the flare-ups occur two to three times per week. The flare-ups are moderate to severe and lasts five to seven days, but the bad ones last longer. He reported the flare-ups are alleviated by the medications. He reported functional loss consisting of limited mobility and limited walking ability with sciatic flare-up. In addition to the medical evidence above, VA treatment records reflect that the Veteran has undergone multiple epidural injections for his lumbar spine. An April 2020 VA treatment note reflects that the Veteran reported that his low back pain greatly improved. In his November 2012 Notice of Disagreement and April 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran reported debilitating difficulties getting out of bed, that he cannot sit or stand for prolonged periods, has difficulty sleeping due to his back pain, and that he has radiating pain into his legs. The Veteran also reported in the April 2015 statement that he has unfavorable ankylosis of the entire spine. Furthermore, at the July 2018 Board hearing the Veteran testified that his back pain averages 7 out of 10, he is limited in walking and running, he has radiculopathy that is worse in his left leg, he cannot bend more than 45 degrees, and he has cramps. He also reported at the Board hearing that he has been moved to different jobs due to his limitations. Even when considering the reports of pain and difficulty in prolonged positions and with walking and running, the evidence shows the Veteran’s thoracolumbar range of motion has not been reduced to such degree to warrant a rating in excess of 10 percent. Although the Veteran reported in his April 2015 written statement that he has unfavorable ankylosis of the entire spine and at his July 2018 Board hearing that he cannot bend more than 45 degrees, the objective medical evidence of record illustrates that the Veteran’s forward flexion has been reduced to at most 75 degrees during the appeal period, estimated after consideration of pain and functional loss. Furthermore, the weight of the evidence is against a finding that the Veteran’s thoracolumbar spine is fixed in a neutral position, or fixed in flexion or extension with additional symptoms to warrant a rating based on favorable or unfavorable ankylosis, as VA examinations and treatment records have not revealed such findings. Therefore, with consideration of the provisions of §§ 4.40, 4.45, and 4.59, the Veteran’s lumbar spine condition most nearly approximates the criteria for the assigned 10 percent rating. Thus, even when considering the reported functional loss, the Veteran’s disability picture does not more nearly approximate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the lumbar 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. Thus, a rating in excess of 10 percent is not warranted throughout the appeal period. The Board has considered whether the Veteran is entitled to a higher rating under the rating criteria for IVDS. Although the record reflects the Veteran has IVDS, the evidence does not show that the Veteran had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in any 12-month period since the Veteran left service. Therefore, a rating in excess of 10 percent for the lumbar spine disability is not warranted under the rating criteria for IVDS. The Board has considered whether there are any other diagnostic codes which could apply to the Veteran’s back disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. While the medical evidence of record indicates arthritis has been documented, Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. Thus, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable diagnostic codes by which a higher rating can be assigned. As noted above, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has had any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. Furthermore, the Veteran was awarded service connection in a September 2020 rating decision for bilateral lower extremity radiculopathy. Thus, further discussion is unnecessary. In sum, the Board finds that a rating in excess of 10 percent for the Veteran’s lumbar spine condition is not warranted for the entire period on appeal. Consequently, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.   3. Entitlement to an initial rating in excess of 10 percent for cervical spine condition is denied. The Veteran and his representative contend the Veteran is entitled to a rating in excess of 10 percent for his cervical spine condition. See Informal Hearing Presentation, November 2020; see also Board Hearing Transcript, July 2018. The Veteran’s cervical spine condition has been assigned a 10 percent rating throughout the appeal period under hyphenated Diagnostic Code 5243-5242. 38 C.F.R. § 4.71a. The hyphenated diagnostic codes indicate that the Veteran’s cervical spine condition is rated, by analogy, under the criteria for IVDS (Diagnostic Code 5243) and degenerative arthritis of the spine (Diagnostic Code 5242). The Veteran’s cervical spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasms, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal; or, vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted 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 rating is warranted 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 rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (1) provides that for purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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. Turning to the evidence of record, the Veteran attended a VA examination in January 2012 for an evaluation of his cervical spine. Range of motion testing revealed the Veteran had forward flexion to 45 degrees without pain and extension to 45 degrees without pain. He had left and right lateral flexion to 45 degrees without pain and left and right lateral rotation to 80 degrees without pain. The Veteran had no additional loss of range of motion upon repetitive use testing. The Veteran had no muscle spasm, tenderness, or guarding of the cervical spine. The Veteran reported that it hurts to turn his head, and he must hold his head in a certain position to eat without pain. The Veteran attended an additional VA examination in October 2019 for an evaluation of his cervical spine. Range of motion testing revealed the Veteran had forward flexion to 35 degrees with pain and extension to 15 degrees with pain. He had left and right lateral flexion to 25 degrees with pain and left and right lateral rotation to 50 degrees with pain. Range of motion itself did not contribute to functional loss. The Veteran had no localized tenderness or pain on palpation in the thoracolumbar spine. The Veteran had pain with weight bearing. The Veteran did not have guarding or muscle spasm of the cervical spine. The Veteran had no additional loss of function or range of motion upon repetitive use testing. The VA examiner noted that pain significantly limited the Veteran’s functional ability with repeated use over time, and the examiner was unable to describe in terms of range of motion. The VA examiner noted that pain significantly limited the Veteran’s functional ability during flare-ups. The examiner noted that there were no additional contributing factors to disability. The Veteran had normal muscle strength throughout and no muscle atrophy. The Veteran had no ankylosis. The examiner noted that the Veteran had IVDS, but that the Veteran had no episodes of acute signs and symptoms due to IVDS that required physician prescribed bed rest in the 12 months preceding the examination. The examiner noted that the functional impact of the Veteran’s cervical spine disability is that he would have decreased ability to move full range of motion of neck due to neck pain, and a decreased ability to lift or work at awkward angles such as working on equipment. The Veteran reported experiencing constant pain. He reported his cervical spine condition impacts anything requiring turning of the head. He reported it was hard, if not impossible, to sleep due to the pain. The Veteran reported severe flare-ups that occur anytime he has to use or move his head and neck. They are precipitated by driving, lifting, and most normal daily activity. The flare-ups last two to three days. He reported the flare-ups are alleviated by lying down with support under his neck and his medications. In addition to the medical evidence above, the Veteran has attended physical therapy for his cervical spine condition at multiple periods during the appeal period. Furthermore, a June 2019 VA treatment record reflects that the Veteran underwent multiple epidural injections. In his November 2012 Notice of Disagreement and April 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran reported debilitating pain that radiates to his arms, difficulty turning his head to look at anything, not being able to look over his left shoulder, and difficulty driving due to difficulties with turning his head. The Veteran also reported in the April 2015 statement that he has unfavorable ankylosis of the entire spine and that he had issues swallowing food and liquid requiring him to tilt his neck to the left to complete the process of swallowing and avoid choking or additional pain. Furthermore, at the July 2018 Board hearing, the Veteran testified that he has limited range of motion, pain and radiculopathy into his arms, pain when turning his head such as when driving, and spasms, popping, and a feeling that his bones are rubbing together. He also reported at the Board hearing that he was unable to go into work three to five times in the year preceding the hearing due to his neck, but he was able to telework. In this case, the Veteran’s cervical spine disability has been shown to have forward flexion to 35 degrees with pain and a combined range of motion greater than 170 degrees. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran’s reports of pain, loss of motion, and functional loss as a result of his cervical spine disability, notably his difficulty with turning his head which negatively impacts his driving and limitations on swallowing food. When considering the reports of functional loss as shown by the VA examination and the Veteran’s reports of pain and stiffness, the evidence shows the Veteran’s cervical spine forward flexion has been greater than 30 degrees and his combined range of motion has been greater than 170 degrees. Furthermore, there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Although the Veteran reported in his April 2015 written statement that he has unfavorable ankylosis of the entire spine, the objective medical evidence of record illustrates that the Veteran’s forward flexion has been reduced to at most 35 degrees during the appeal period. However, the weight of the evidence is against a finding that the Veteran’s cervical or entire spine is fixed in a neutral position, or fixed in flexion or extension with additional symptoms to warrant a rating based on favorable or unfavorable ankylosis, as VA examinations and treatment records have not revealed such findings. The Board acknowledges the Veteran’s statements that he has to tilt his head in a certain way to swallow food so as not to choke, but the evidence does not show that the Veteran’s cervical or entire spine is fixed in flexion or extension. Thus, the evidence does not more nearly approximate that the Veteran has unfavorable ankylosis. Hence, the Board concludes that even when considering the reported functional loss, the Veteran’s disability picture did not more nearly approximate forward flexion limited to 30 degrees or less; a combined range of motion of the cervical spine 170 degrees or less; 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. Thus, a rating in excess of 10 percent is not warranted. The Board has considered whether the Veteran is entitled to a higher rating under the rating criteria for IVDS. The record reflects the Veteran has IVDS; however, the evidence does not show that the Veteran had any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in any 12-month period since the Veteran left service. Therefore, a rating in excess of 10 percent for the cervical spine condition is not warranted under the rating criteria for IVDS. The Board has considered whether there are any other diagnostic codes which could apply to the Veteran’s back disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. While the medical evidence of record indicates arthritis has been documented, Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. Thus, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable diagnostic codes by which a higher rating can be assigned. Regarding any neurological impairment, the Veteran was awarded service connection in a September 2018 rating decision for bilateral upper extremity radiculopathy. Thus, further discussion is unnecessary. In sum, the Board finds that a rating in excess of 10 percent for the Veteran’s cervical spine condition is not warranted for the entire period on appeal. Consequently, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent prior to October 18, 2019 and in excess of 70 percent thereafter for PTSD is remanded. 2. Entitlement to an initial rating in excess of 40 percent for TBI with photophobia is remanded. The Veteran has attended multiple VA examinations during the appeal period for an evaluation of his PTSD and TBI with photophobia, but a review of the record illustrates that an additional VA examination and opinion is necessary to determine, if possible, what symptoms are attributable to PTSD and what symptoms are attributable to TBI with photophobia. In an October 2019 VA examination report, the VA examiner noted that the symptoms attributable to the Veteran’s PTSD are depressed mood, anxiety, suspiciousness, sleep impairment, disturbances of motivation and mood, difficulties with work and social relationships, difficulties with stressful circumstances, and interpersonal relationship difficulties. The examiner noted that the symptoms attributable to the Veteran’s TBI are mild memory loss, difficulty with complex commands, and impaired judgment. In an August 2020 VA examination report for the Veteran’s TBI, the VA examiner noted that the PTSD examiner opined that the Veteran’s memory problems and judgment issues are related to his TBI, but the August 2020 examiner disagreed with that conclusion. The August 2020 examiner reasoned that the Veteran tested relatively normal on neuropsychological testing, and that the Veteran did not “appear” to show any significant impaired judgment except “possibly” related to his PTSD. The August 2020 examiner then noted that the memory problems and impaired judgment “appear” to be more functional rather than organic. The rationale in the August 2020 opinion is limited as it is phrased in speculative terms. Therefore, as it is unclear from the above opinions what symptoms are attributable to the Veteran’s PTSD and what are attributable to his TBI with photophobia, an additional VA examination and opinion is necessary. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from July 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an appropriate VA examination or examinations (including via telehealth interview if an in-person examination is not feasible), to evaluate the severity of the Veteran’s PTSD and TBI with photophobia disabilities. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate PTSD and TBI separate and in combination under the criteria of the rating schedule must be conducted and the results reported in detail.   The examiner(s) is asked to address the following. (a.) Identify the symptoms associated with the Veteran’s PTSD and TBI with photophobia that are attributable specifically to the Veteran’s PTSD and which symptoms are attributable specifically to the Veteran’s TBI with photophobia. (b.) Specifically address the following symptoms identified at the October 2019 VA examination and provide an opinion as to which symptoms are attributable specifically to the Veteran’s PTSD and which symptoms are attributable specifically to the Veteran’s TBI with photophobia. i) Depressed mood; ii) Anxiety; iii) Suspiciousness; iv) Sleep impairment; v) Disturbances of motivation and mood; vi) Difficulties with work and social relationships; vii) Difficulties with stressful circumstances; viii) Interpersonal relationship difficulties; ix) Mild memory loss; x) Difficulty with complex commands; xi) Impaired judgment; and xii) Neurobehavioral difficulty with social isolation and a lack of empathy. The examiner(s) must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner(s) cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation regarding the symptoms that are attributable to the Veteran’s PTSD and which symptoms are attributable to the Veteran’s TBI with photophobia. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.