Citation Nr: 21065919 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-07 719 DATE: October 27, 2021 ORDER A higher rating for cervical strain, evaluated as 10 percent disabling prior to January 18, 2021, is denied. A higher rating for cervical strain, evaluated as 30 percent disabling since January 18, 2021, is denied. A higher rating for degenerative disc disease, lumbosacral spine, evaluated as 20 percent disabling prior to January 18, 2021, is denied. A higher rating for degenerative disc disease, lumbosacral spine, evaluated as 40 percent disabling since January 18, 2021 is denied. A higher rating for percent for posttraumatic stress disorder with traumatic brain injury, evaluated as 70 percent disabling prior to January 26, 2021, is denied. Since January 26, 2021, a 100 percent disability rating for posttraumatic stress disorder is granted. A rating higher than 10 percent for right shin splints is denied. A rating higher than 10 percent for left shin splints is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 18, 2021, when considering the Veteran's pain and corresponding functional loss, including during flare-ups, the weight of the competent and probative evidence demonstrates that the limitation of motion of the cervical spine was 45 degrees. 2. Since January 18, 2021, the Veteran's cervical spine disability manifested in forward flexion less than 15 degrees; the Veteran does not have unfavorable ankylosis of the spine. 3. Prior to January 18, 2021, the Veteran's degenerative disc disease, lumbosacral spine manifested in forward flexion greater than 30 degrees. 4. Since January 18, 2021, the Veteran's degenerative disc disease, lumbosacral spine has manifested in forward flexion less than 30 degrees; no unfavorable ankylosis of the entire thoracolumbar spine was found. 5. In a November 2020 letter, the Veteran was asked to provide information necessary to adjudicate her claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940. 6. From June 16, 2013, the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC). 7. Prior to January 26, 2021, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas such as work, thinking and mood, but not total occupational and social impairment. 8. Since January 26, 2021, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximate total occupational and social impairment 9. Since June 16, 2013, the Veteran's left shin splints manifest with pain that limits prolonged walking or standing, but without limitation of motion, instability, or abnormal motor strength.by slight pain. 10. Since June 16, 2013, the Veteran's right shin splints manifest with pain that limits prolonged walking or standing, but without limitation of motion, instability, or abnormal motor strength. CONCLUSIONS OF LAW 1. Prior to January 18, 2021, the criteria for a rating higher than 10 percent disabling for cervical strain have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. Since January 18, 2021, the criteria for a rating higher than 30 percent disabling for cervical strain, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code (DC) 5237. 3. Prior to January 18, 2021, the criteria for a rating higher than 20 percent for degenerative disc disease, lumbosacral spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5242. 4. Since January 18, 2021, the criteria for a rating higher than 40 percent for degenerative disc disease, lumbosacral spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5242. 5. The appeal as to entitlement to a TDIU for the period from June 16, 2013 is moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 6. Prior to January 26, 2021, the criteria for a rating higher than 70 percent for posttraumatic stress disorder with traumatic brain injury (also claimed as anxiety, depression, insomnia, and nightmares every night) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411. 7. Since January 26, 2021, the criteria for an initial 100 percent disability rating for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, DC 9411. 8. The criteria for a rating higher than 10 percent for right shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a DC 5299-5262. 9. The criteria for a rating higher than 10 percent for left shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a DC 5299-5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2004 to June 2013, including service in Iraq from January 2005 to January 2006 and from January 2007 to April 2008, and his decorations include the Combat Infantryman Badge. In September 2020, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. The claims were remanded for further development in an October 2021 Board Remand. While on remand, a February 2021 RO decision granted an increased rating for degenerative disc disease to 40 percent disabling effective January 18, 2021; an increased rating for cervical strain to 30 percent disabling effective January 18, 2021. The claims have now returned for appellate review. Increased Ratings 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 Diagnostic Codes. 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). 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. Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous...." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 1. A higher rating for cervical strain, evaluated as 10 percent disabling prior to January 18, 2021. 2. A higher rating for cervical strain, evaluated as 30 percent disabling since January 18, 2021. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169, 70 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. 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 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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. Relevant to the analysis herein, the criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. An "incapacitating episode" is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome with arthritis. Diagnostic Code 5243 for intervertebral disc syndrome is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5244 for paraplegia and quadriplegia was also added. Prior to January 18, 2021 The Veteran's cervical spine disability is rated as 10 percent disabling prior to January 18, 2021. March 2013 and March 2016 treatment notes document full range of motion of the cervical spine. At the June 2016 VA examination, the Veteran reported decreased range of motion. The Veteran's forward flexion was normal, with pain noted on examination that caused functional loss in right lateral rotation and left lateral rotation. There was no evidence of pain on weight bearing, and no localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. The Veteran was able to perform repetitive use testing with no additional loss of function. There was no guarding or muscle spasm. The examiner did not note the occurrence of flare-ups. There was no radiculopathy, ankylosis, or IVDS of the cervical spine. Additionally, pain, weakness, fatigability or incoordination did not significantly limit functional ability. The Veteran did not use assistive devices as a normal mode of locomotion. In light of the foregoing, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, did not more nearly approximate the criteria for a 20 percent rating prior to January 18, 2021. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, even after resolving all reasonable doubt in the Veteran's favor, a rating higher than 10 percent is not assignable for his cervical spine disability prior to January 18, 2021. Higher than 30 since January 18, 2021 The Veteran's cervical spine disability is currently rated as 30 percent disabling since January 18, 2021. At the September 2020 Board hearing, the Veteran testified that his cervical strain symptoms have increased in severity such that it may require surgery. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. In fact, the Veteran's cervical spine condition manifests with some symptoms readily observable by a lay person, such as pain and limitation of motion. Accordingly, the lay evidence is competent evidence to this extent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015); Fountain, 27 Vet. App. at 274-75. However, the rating schedule for evaluating the cervical spine requires precise medical findings, including findings as to range of motion in degrees, which requires accurate measurements in degrees. See 38 C.F.R. § 4.46. It does not appear that the Veteran has a background or medical expertise needed to make such precise range of motion findings. Accordingly, his testimony and statements are useful in understanding his symptoms, including the effects of the disability on his daily life. However, this testimony does not provide a basis for assigning a higher rating. See Petitti, 27 Vet. App. at 427-28. Pursuant to the October 2020 Board remand, the Veteran underwent a VA examination in January 2021 to determine the severity of his cervical spine disability. He reported experiencing daily tingling, numbness, and stabbing pain, including radiating pain, tingling, and numbness to bilateral arms. The Veteran experiences radiculopathy and has service-connected right and left upper extremity radiculopathy disabilities. The examiner noted that the Veteran's forward flexion range of motion was 0 to 10 degrees. The examiner also noted that suboptimal efforts were given in performance of the test, and the range of motion test was invalid for rating purposes. Ultimately, the examiner indicated that the Veteran's range of motion contributed to functional loss in that it caused limited weight bearing and physical activity. There was no evidence of pain with weight bearing, but there was evidence of pain that causes functional loss. The examiner did not find additional loss of function or range of motion with repetitive use testing, nor did pain, fatigue, weakness, lack of endurance or incoordination cause additional functional loss. Pain, weakness, fatigability or incoordination significantly limits functional ability to the extent that forward flexion was to 0 degrees. The examiner documented that flare-ups caused pain. There was no tenderness, guarding or muscle spasm. The Veteran did not have muscle atrophy. There Veteran does not have ankylosis of the spine. In order for the Veteran to receive a higher rating, there needs to be evidence of unfavorable ankylosis of the entire cervical spine. The Veteran also experiences pain and limited range of motion, which is contemplated by the 30 percent rating. However, the medical evidence does not show, and the Veteran has not asserted otherwise, that he has unfavorable ankylosis of the cervical spine. In light of the foregoing, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a 40 percent rating at any time during the appeal period. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, even after resolving all reasonable doubt in the Veteran's favor, a rating higher than 30 percent is not assignable for his cervical spine disability since January 18, 2021. 3. A higher rating for degenerative disc disease, lumbosacral spine, evaluated as 20 percent disabling prior to January 18, 2021. 4. A higher rating for degenerative disc disease, lumbosacral spine, evaluated as 40 percent disabling since January 18, 2021. The Veteran is seeking an increased rating for his lumbosacral strain, with degenerative arthritis of the lumbosacral spine, which is rated at 20 percent prior to January 18, 2021 and 40 percent since January 18, 2021, pursuant to DCs 5237-5242. Diagnostic Code 5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Under the revised regulations, effective February 7, 2021, DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Diagnostic Code 5242 for all other disc diagnoses. As the Veteran's back diagnoses include disc herniation with compression and/or irritation of the adjacent nerve root (IVDS), DC 5243 will be applied to adjudicate the claim. Prior to January 18, 2021 The Veteran was afforded a VA examination of the thoracolumbar spine in June 2016. Upon examination, thoracolumbar motion was reported as normal range of motion. On repetition, thoracolumbar motion was also reported as normal. There was no pain, weakness, fatigability or incoordination that significantly limited functional ability over a period of time. No flare-ups were reported. The Veteran had a paravertebral muscle spasm described as "somewhat" straightening to the spine with mild tenderness on palpation, and localized tenderness that did not result in abnormal gait or abnormal spine contour. There was no guarding, and no muscle atrophy. The Veteran did not have ankylosis. The examiner noted evidence of pain with weightbearing. The Veteran did not report the occurrence of flare-ups, The Veteran had normal reflexes and a normal straight leg raising test. He reported decreased feeling in both legs, and pain that goes to ischiatic notch, outer thigh, legs and feet, and has current service-connected lower left and right extremity radiculopathy disabilities. The examiner did not find evidence of IVDS. The examiner opined that the Veteran's lumbar spine disability had mild impact on his ability to work in a physical job where he had to lift, push, or pull heavy objects, and no impact on his ability to work in a sedentary job where he had to sit at a desk and work at a computer or answer telephones. The preponderance of the evidence described above shows that the Veteran's low back disability does not warrant a rating in excess of 20 percent prior to January 18, 2021. No VA examiner or treatment provider has found that the Veteran's thoracolumbar spine had forward flexion 60 degrees or less during this time period or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the ratings currently assigned. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran's pain causes functional impairment equivalent to the criteria for higher ratings. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the 20 percent prior to January 18, 2021. 38 C.F.R. § 4.7. A such, the preponderance of the evidence is against this claim, and it must be denied. Since January 18, 2021 The Veteran reported at the September 2020 Board hearing that his symptoms have worsened over time. Pursuant to the October 2020 Board remand, the Veteran underwent a VA examination in January 2021. He symptoms include limited range of motion, stiffness, locking, popping, aching, discomfort, muscle spasms, tingling, numbness, and pain radiating down from his legs to his hips. The diagnostic x-ray did not find degenerative changes. Additionally, the examiner did not find IVDS. There was no ankylosis, and the examiner documented mild radiculopathy with moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The sensory exam results reflected decreased bilateral sensation in the lower extremities, with normal reflex. Muscle strength testing found active movement against some resistance. There was no muscle atrophy and no guarding. There was muscle spasm not resulting in abnormal gait or abnormal spinal contour. Forward flexion on initial range of motion was noted at 0 to 20 degrees, with the examiner documenting that the range of motion was not sufficient to validate the severity of the condition, explaining that the diagnostic x-ray of the lumbar spine showed no degenerative changes and unremarkable results. The Veteran is currently receiving the 40 percent evaluation. The Board finds that evidence of record, including the results of the January 2021 VA examination, do not support a rating higher than 40 percent rating for the back, pursuant to DC 5242. The evidence, however, shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine. Moreover, the preponderance of the evidence shows that his back disability is not productive of functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough 34 Vet. App. 1 (2021). As such, a rating of 40 percent, and no more, is warranted since January 2021. Moreover, the Veteran does not contend, and the evidence does not show that his back disability has been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the ratings currently assigned. The preponderance of the evidence described above shows that the Veteran's low back disability does not warrant a rating in excess of 40 percent since January 18, 2021. No VA examiner or treatment provider has found unfavorable ankylosis of the Veteran's thoracolumbar spine. Given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the thoracolumbar spine as defined above during either time periods. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the ratings currently assigned. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran's pain causes functional impairment equivalent to the criteria for higher ratings. For these reasons, the Board finds that the Veteran's low back disability picture is most closely approximated by the 20 percent prior to January 18, 2021 and 40 percent criteria since January 18, 2021. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 5. A rating higher than 70 percent for posttraumatic stress disorder with traumatic brain injury (also claimed as anxiety, depression, insomnia, and nightmares every night). The Veteran's posttraumatic stress disorder is assigned a 70 percent disability. The Veteran states that his PTSD is more severe than the assigned rating reflects. The Veteran's PTSD is currently rated under Diagnostic Code 9411. VA regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms listed. Diagnostic Code 9411 provides a noncompensable rating for a mental condition that has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. During the September 2020 Board hearing, the Veteran explained that he has suicidal ideation. These findings were consistent with a 70 percent rating. However, total social impairment was not shown based on the evidence of record at the time. The Board remanded the claim for a medical examination to obtain a current evaluation of the Veteran's posttraumatic stress syndrome. The Board finds that, there is a reasonable basis for finding that the symptoms of the Veteran's PTSD more nearly approximate the criteria for total occupational and social impairment supporting a 100 percent rating since January 26, 2021, and 70 percent rating prior to January 26, 2021. See also 38 C.F.R. § 4.7. April 2019 treatment records document a negative screen on the depression scale, and a negative primary screen for risk of suicide. The Veteran also answered "not at all" in response to whether he was bothered by the following problems: little interest or pleasure in doing things, feeling down, depressed depression or hopeless, and he indicated that he had not experienced those feelings in the two weeks prior to screening. June 2020 treatment records document a negative screen on the depression scale, and a negative primary screen for risk of suicide. The Veteran also answered "not at all" in response to whether he was bothered the following problems: feeling down, depressed depression or hopeless, and indicated that he had not experienced those feelings in the two weeks prior to screening. He answered that he felt little interest or pleasure in doing things for several days over the previous two weeks. The Veteran was afforded a VA examination in January 2021 to evaluate his posttraumatic stress disorder pursuant to the October 2020 Board remand. The Veteran stated that he experiences hypervigilance in public, rarely leaves the house, difficulty opening up to his spouse, and difficulty managing his mental health. The Veteran also expressed that he experiences depressed mood and lack of pleasure or engagement in significant activities. He shared that he has a history of neglecting personal hygiene, and that he has mild memory impairment. The Veteran's symptoms were also described as sleep disturbance, persistent inability to experience positive emotions, irritable behavior, persistent negative emotional state, inability to establish and maintain effective relationships, flattened affect, impaired judgement, and suicidal ideation. The Veteran denied a suicidal plan, means, desire, intent, or attempts, and noted that he is equipped with the VA Crisis line. The Veteran endorsed that he had a history of auditory and visual hallucinations. The examiner opined that the Veteran was capable of managing his own affairs. While the examiner also opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, and family relations, judgement, thinking and/or mood, the Board finds that the Veteran's symptoms are more analogous to total occupational and social impairment since January 26, 2021. The Veteran explained that he was employed until January 2020, when he was terminated due to his history of conflicts with coworkers and supervisors. The examiner also found that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social occupational, or other important areas of functioning. The Veteran experiences unprovoked irritability with periods of violence, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The Veteran also experiences difficulty in adapting to stressful circumstances including work or a work-like setting, as well as inability to establish and maintain effective relationships. Thus, resolving all doubt in favor of the Veteran, the evidence shows that since January 26, 2021, the Veteran's symptoms are analogous to total occupational and social impairment. 6. A 10 percent rating for right shin splints. 7. A 10 percent rating for left shin splints. The Veteran's left and right shin splints are currently evaluated as 10 percent disabling. The Veteran was afforded January 2021 VA examinations, pursuant to the October 2020 Board remand. The Veteran reported that his shin splint disorders persist with associated moderate to severe bilateral pain. The examiner documented the Veteran's reports that prolonged walking exacerbates the conditions, and that standing up is difficult at times due to pain and tightness. The Veteran reported experiencing flare-ups three times weekly for the duration of four to five hours. The examiner found that the Veteran was limited in distances with walking and in standing, with weight-bearing and physical activity. He is also unable to run and has loss of balance fatigue. The examiner did not find evidence of atrophy was and there was no history of recurrent subluxation. The Veteran's anterior, posterior, medial, and lateral instability test were normal. The Veteran's shin splints do not affect the range of motion of his ankles. Based on consideration of all evidence of record, the Board finds that 10 percent ratings, but no higher, are warranted for the right and left leg shin splint disabilities. The 10 percent rating is assigned for a mild disability. In assigning this compensable rating, the Board notes that painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1. However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43. The Veteran's bilateral shin splints manifest with symptoms of bilateral lower anterior shin pain and tenderness, which reportedly limit his ability to stand or walk for prolonged periods. The 10 percent rating assigned compensates the Veteran for the functional loss due to pain that interferes with the normal working movements of his shins. The Board has considered the other Diagnostic Codes related to the knee and leg. The record does not show symptoms more nearly approximating ankylosis, recurrent subluxation or lateral instability, semilunar cartilage damage, limitation of flexion to a compensable degree, limitation of extension to a compensable degree, or genu recurvatum. Thus, the assignment of higher ratings under those Diagnostic Codes is not appropriate. The Board finds that moderate knee or ankle disabilities are not indicated, and thus the preponderance of the evidence is against the assignment of any higher ratings. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. In sum, the Board finds that ratings higher than 10 percent are not supported, even when affording the Veteran the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 8. Entitlement to TDIU. The Board notes that the Veteran is in receipt of a 100 percent disability rating and Special Monthly Compensation (SMC), effective June 16, 2013. As the RO noted, in November 2020, it sent the Veteran a VA Form 21-8940 and requested that he complete and submit the document. To date, he has not done so. Because the Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding her employment history, the Veteran has not provided all of the information necessary to adjudicate the claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate Further, the combined rating for the Veteran's service-connected disabilities is 100 percent and the evidence shows that no such disability alone renders the Veteran unable to work, other than his psychiatric disability, the rating of which the Board has increased to 100 percent, effective January 26, 2021 Although a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Here, the Veteran is already in receipt of both a 100 percent disability rating and SMC since June 16, 2013. Therefore, the potential for SMC as discussed in Buie and Bradley is not applicable. Thus, consideration of a TDIU for the period since June 16, 2013 would result in no additional discernable benefit to the Veteran. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.