Citation Nr: 21066354 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-22 779 DATE: October 29, 2021 ORDER Entitlement to an initial rating higher than 10 percent for left knee chondromalacia patella syndrome prior to May 27, 2021 and greater than 50 percent thereafter is denied. Entitlement to an initial rating higher than 10 percent for right knee chondromalacia patella syndrome prior to May 27, 2021 and higher than 50 percent thereafter is denied. Entitlement to an initial 50 percent rating for migraine headaches effective from September 16, 2013 is granted. Entitlement to an initial rating higher than 10 percent for lumbar spine disability prior to May 27, 2021 and higher than 20 percent thereafter is denied. Entitlement to an initial rating higher than 10 percent for sinusitis prior to May 27, 2021 and higher than 30 percent thereafter is denied. Entitlement to an initial rating higher than 20 percent for left shoulder disability is denied. Entitlement to an initial rating higher than 30 percent for psychiatric disability prior to May 26, 2021 and higher than 70 percent thereafter is denied. FINDINGS OF FACT 1. Prior to May 27, 2021, the Veteran's bilateral knee disability has not resulted in a compensable limitation of flexion or extension and no disability other than painful limitation of motion has been demonstrated for both the left and right knee. 2. From May 27, 2021, the Veteran's bilateral knee disability is assigned the maximum rating for extension limited to 45 degrees during episodes of increased symptoms. There is no evidence of ankylosis in either knee. 3. Effective from September 16, 2013, the Veteran's migraine headaches more nearly approximated the criteria for a 50 percent rating. 4. Prior to May 27, 2021, the Veteran's lumbar spine disability has been manifested by subjective low back pain with forward flexion between 60 and 85 degrees and the combined range of motion of the thoracolumbar spine was between 125 and 235 degrees; without ankylosis, abnormal gait or spinal contour, incapacitating episodes necessitating bed rest prescribed by a physician; or associated neurologic abnormality. 5. For the period from May 27, 2021, the Veteran's lumbar spine disability has been manifested by pain and forward flexion greater than 30 degrees, without any ankylosis; and no incapacitating episodes necessitating bed rest prescribed by a physician having a duration of at least four weeks have been shown; or associated neurologic abnormality. 6. Prior to May 27, 2021, the Veteran's sinusitis disability is not manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 7. Since May 27, 2021, the Veteran's sinusitis disability has more nearly approximated sinusitis with an average of more than six non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. 8. The Veteran's left shoulder disability does not involve limitation of motion to 25 degrees from the side, nor is there fibrous union to the humerus. 9. Prior to May 26, 2021, the Veteran's psychiatric disability was not shown to cause occupational and social impairment with reduced reliability and productivity 10. Since May 26, 2021, the Veteran's psychiatric disability has not resulted in manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for left knee chondromalacia patella syndrome prior to May 27, 2021 and greater than 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Code) 5260, 5261. 2. The criteria for an initial rating higher than 10 percent for right knee chondromalacia patella syndrome prior to May 27, 2021 and higher than 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Code 5260, 5261. 3. The criteria for an initial 50 percent rating for migraine headaches prior to May 27, 2021 (effective from September 16, 2013) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4124a, Code 8100. 4. The criteria for an initial rating higher than 10 percent for lumbar spine disability prior to May 27, 2021 and higher than 20 percent thereafter have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5237. 5. The criteria for an initial rating higher than 10 percent for sinusitis prior to May 27, 2021 and higher than 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.97, Code 6511. 6. The criteria for an initial rating higher than 20 percent for left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 4.71a, Code 5201. 7. The criteria for an initial rating higher than 30 percent for psychiatric disability prior to May 26, 2021 and higher than 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2009 to September 2013. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, these matters were remanded for further development, to include contemporaneous examinations. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board acknowledges that the rating criteria for musculoskeletal disabilities, including knees, were revised on February 7, 2021. In this instance, however, the specific rating criteria and Codes relevant to the Veteran's musculoskeletal disabilities were not affected by the changes and the revisions are therefore not applicable. 38 C.F.R. § 4.71a; 85 FR 76460, Nov. 30, 2020; 86 FR 8142, Feb. 4, 2021. At the outset, the Board notes that the Veteran has not raised any other issues with respect to his claims on appeal, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, lay statements, shows that the Veteran remains employed. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. Finally, the Board notes that it has reviewed all of the evidence of record in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See 38 U.S.C. § 5107(b). 1. Entitlement to an initial rating higher than 10 percent for left knee chondromalacia patella syndrome prior to May 27, 2021 and greater than 50 percent thereafter 2. Entitlement to an initial rating higher than 10 percent for right knee chondromalacia patella syndrome prior to May 27, 2021 and higher than 50 percent thereafter Prior to May 27, 2021, the Veteran's right and left knee disabilities are rated under Code 5260 for limitation of flexion of the leg. Under this Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. From May 27, 2021, the Veteran's left and right knee disabilities have been rated under Code 5261 for limitation of extension of the leg. Under this Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. Codes 5260 and 5261 are for limitation of motion. They provide criteria for limitation of flexion and extension of the leg. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). During October 2013 VA examination, the Veteran does not report any knee flare-ups. Right and left knee revealed flexion each to 130 degrees with no objective evidence of painful motion; right and left knee extension 0 degrees with no objective evidence of painful motion. He was able to perform repetitive testing with 3 repetitions without any loss of motion or functional impairment. There is no tenderness or pain to palpation for joint line or soft tissues in either knee. Muscle strength testing was 5/5 in both knees for both flexion and extension. All joint stability tests were normal in both knees. There was no evidence or history of recurrent patellar subluxation/dislocation. No other pertinent findings in either knee. Post-service treatment records show no ongoing treatment or range of motion studies for either knee. During June 2014 VA examination, bilateral knee chondromalacia patella was diagnosed. Range of motion revealed right knee flexion 140 degrees with no objective evidence of painful motion; right knee extension 0 degrees with no objective evidence of painful motion; left knee flexion 140 degrees with no objective evidence of painful motion; and left knee extension 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive testing for three repetitions without any functional loss or impairment in either knee. Muscle strength testing was normal 5/5 and all joint instability testing was normal for both the left and the right knee. There was no evidence of recurrent patella subluxation or dislocation in either knee. No other pertinent findings in either knee. During May 2021 VA examination, the Veteran reports flare-ups of the knees for a frequency of one to two months for one to two hours. He has constant pain especially after walking for a long period of time. He indicates that the pain is moderate. The Veteran reported functional loss and impairment. He indicates that it feels really stiff and is very painful to bend his knees. Active range of motion for both knees reveals flexion 90 degrees and extension 50 degrees with pain noted on flexion and extension in both knees. Passive range of motion is the same as the active range of motion for both knees. There is evidence of pain with weight-bearing, non-weight-bearing, active motion, passive motion bilaterally. The pain does not result in or cause functional loss in either knee. No objective evidence of crepitus in either knee. Estimated range of motion in degrees for the bilateral knees immediately after repeated use over time is flexion to 85 degrees and extension to 55 degrees. There is no evidence of joint instability. No other pertinent findings of either knee. In light of the fact that the Veteran's bilateral knee range of motion has not, at any point prior to May 27, 2021, been sufficiently limited to warrant a compensable rating, i.e., extension to 10 degrees or flexion to 45 degrees, an increased disability rating under Codes 5260 or 5261 is not warranted. As such, the currently assigned 10 percent disability ratings based on normal range of motion with pain is appropriate. Further, the evidence does not show that the Veteran has any of the diagnoses, in either knee, which would trigger application of other rating codes, such as Codes 5256 (ankylosis), 5257 (recurrent subluxation or lateral instability), 5258 (dislocated semilunar cartilage), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum). As noted, since May 27, 2021, the Veteran has a maximum 50 percent rating in each knee for limitation of extension to 45 degrees or less. A higher rating is not available under this Code. A higher rating of 60 percent is available for extremely unfavorable ankylosis, but the VA examinations found that no ankylosis is present in either knee. Therefore, a rating higher than 50 percent for limitation of extension of the right and left knee disabilities is not warranted, and any higher ratings must be denied. 3. Entitlement to an initial rating higher than 30 percent for migraine headaches prior to May 27, 2021 The Veteran's current headache disability is rated at 50 percent effective from May 27, 2021. Prior to that date his headache disability is rated 30 percent. The Veteran contends that the maximum 50 percent disability rating is warranted for his headaches prior to May 27, 2021. Indeed, he and his representative asserts that a 50 percent rating is warranted from September 16, 2013. The Veteran's migraine headaches are currently evaluated under 38 C.F.R. § 4.124a, Code 8100, which provides a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating for migraines with prostrating attacks averaging one in 2 months over last several months, and a 0 percent rating for less frequent attacks. The phrase "completely prostrating" is not defined in the rating schedule. However, the Court has held that "prostrating" is defined as "lacking in vitality or will" and "powerless to rise." See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The Court has indicated that the phrase "completely prostrating" means the headaches "must render the veteran entirely powerless." Id. at 253. This differs from "characteristic prostrating" (required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Moreover, "prolonged" has been defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. "[P]roductive of severe economic inadaptability" has been defined as either "'producing' or 'capable of producing' severe economic inadaptability." Id. (citing Pierce v. Principi,18 Vet. App. 440 (2004)). The Court has further held that the criteria of Code 8100 are successive. Johnson, 30 Vet. App. at 251. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court held that "nothing in Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating," and "[i]f 'economic inadaptability' were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating." In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in Coe 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. During October 2013 VA examination, the examiner documented that the Veteran experiences headache pain a couple of times a month, and such is located at the top of his head. He indicated that the headache lasts 10 to 15 minutes or less. He states that he does not usually take any medication for it. The Veteran indicated that he does not experience any non-headache symptoms. No prostrating attacks. Post-service treatment records show no ongoing treatment for migraine headaches. During June 2014 VA examination, the Veteran experiences headache pain if he needs to concentrate at work. He indicates that he uses Imitrex for his headache disability. He has sensitivity to light and sound, as well as sensory changes. The headache pain lasts less than one day. He reports characteristic prostrating attacks of headache pain at least once a month. He denied very frequent prostrating and prolonged attacks of migraine headache pain. He indicated that when he has a headache he is slowed down and with a severe headache he must go and lay down. In a September 2019 statement, the Veteran indicated that he has severe headaches more than once per month. He indicated that the VA examinations did not capture his description of his headache disability. He said along with the severe headaches he experiences nausea, vomiting, pressure behind his eyes, dizziness, sensitivity to light and sound. He indicated that the symptoms usually last a day. He indicated due to his headache disability he has to call out of work and/or leave early at least once a month. He indicated that he has been experiencing these headaches at the same severity and frequency since his discharge from service. When resolving all reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating is warranted for the Veteran's headache disability, effective from the beginning of the appeal period, i.e., September 16, 2013. The evidence is clear that throughout the appeal period, the Veteran has had frequent prostrating and prolonged attacks of migraine headache pain. In addition, the Board finds it reasonable the Veteran experiences severe economic inadaptability as a result of his headaches as he would have to be out of work at least more than once a month (frequency of reported headaches) because of his symptoms. The Veteran is competent to report the severity and frequency of his headaches. He is also competent to report when he calls in to work or leaves early to go lay down because of his headache disability. The Board acknowledges the wisdom in Pierce as it addresses the meaning of "productive of severe economic inadaptability" in Code 8100, which includes whether migraine symptoms are "capable of producing" severe economic inadaptability. The Board finds that the Veteran's migraine symptoms reasonably caused severe economic inadaptability as confirmed by his lay statements. In sum, a 50 percent rating is warranted for the Veteran's migraine disability for the entire appeal period from September 16, 2013. 4. Entitlement to an initial rating higher than 10 percent for lumbar spine disability prior to May 27, 2021 and higher than 20 percent thereafter The Veteran's service-connected lumbar spine disability is rated as 10 percent disabling prior to May 27, 2021 and 20 percent disabling from such date under the General Rating Formula for Diseases and Injuries of the Spine, Code 5237. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Code 5237. Under that formula, a 10 percent disability rating is assigned for 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 spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent of more of the height. Id. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. Id. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The General Rating Formula for Diseases and Injuries of the Spine also provides further guidance in rating diseases or injuries of the spine in several notes. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The probative evidence of record does not document any associated objective neurologic abnormalities for any period on appeal. Id. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating more than 10 percent prior to May 27, 2021 and more than 20 percent from such date for lumbar spine disability. During October 2013 VA examination, the lumbar range of motion revealed 80 degrees of flexion with no objective evidence of painful movement; extension to 20 degrees with no objective evidence of painful movement; left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation all to 30 degrees without objective evidence of painful movement. The Veteran was able to perform repetitive-use testing with 3 repetitions without any loss of motion or functional impairment. There was no localized tenderness or pain to palpation, no guarding or muscle spasm. Muscle strength testing was normal 5/5. There was no muscle atrophy. Deep tendon reflexes as well as sensory exam were both normal. Straight leg raising test was normal on both the right and the left side. No signs or symptoms of radiculopathy or other neurologic abnormalities. No disc disease or ankylosis. No other assistive devices. During April 2016 VA examination, range of motion was normal. Forward flexion was to 90 degrees; extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all to 30 degrees. Pain noted on examination however such does not result in or cause functional loss. No evidence of pain with weight bearing. There is objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with some loss noted on extension which was 20 degrees; right lateral flexion which was 10 degrees; and left lateral flexion which was 10 degrees. The examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. Pain significantly limits the Veteran's functional ability during flare-ups. Range of motion is described as forward flexion to 90 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The Veteran does have muscle spasm and localized tenderness however such does not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal 5/5. No muscle atrophy or ankylosis. Deep tendon reflex and sensory examination all normal. No radiculopathy or other neurological abnormalities. During May 2021 VA examination, the Veteran reports flare-ups at a frequency of one to two times per month lasting about 20 to 30 minutes. The pain is sharp with movement and is moderate in nature. He indicated that during flare-ups he is unable to bend, twist, or climb the ladder due to pain. He stated that the pain is unbearable in his back. Active range of motion revealed forward flexion to 45 degrees; extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all to 15 degrees with pain in all movements. Passive range of motion was not performed because the examiner indicated that it would be medically contraindicated. Estimated range of motion after repeated use over time reveals flexion is 40 degrees; and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all 10 degrees. Estimated range of motion during flare-ups show no change from the range of motion during repeated use. The Veteran reports localized tenderness but without abnormal gait or abnormal spinal contour. Muscle strength testing is normal 5/5. There was no muscle atrophy or ankylosis. Reflex exam was normal. Sensory exam is normal. Straight leg raising test is negative on both sides. No radicular pain or any other signs or symptoms due to radiculopathy. No other neurologic abnormalities. No intervertebral disc syndrome (IVDS) of the lumbar spine. The examiner noted that the Veteran has limitation of range of motion due to his service-connected back condition and pain accompanies effort to bend or twist his trunk, to lift and carry objects. He is limited in lifting, pushing, or pulling. He cannot carry objects that weigh 10 or more pounds and cannot do activities that require rapid trunk movement and should not participate in high impact activities. Considering the findings from the probative evidence of record, the Board finds that prior to May 27, 2021, the Veteran's lumbar spine has been manifested by forward flexion between 60 and 85 degrees in the thoracolumbar spine, limited by discomfort and a combined range of motion of the thoracolumbar spine of between 125 and 235 degrees, without palpable muscle spasm. The Board finds that prior to May 27, 2021 even with consideration of the Veteran's limitations due to pain, discomfort and guarding, the evidence does not reflect forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and more nearly approximates the criteria for a 10 percent rating under Code 5237. Accordingly, the Board finds that prior to May 27, 2021, an evaluation more than 10 percent is not warranted for the Veteran's lumbar spine disability. For the rating period from May 27, 2021, forward, the Board finds that the weight of the evidence is against a disability rating more than 20 percent for service-connected lumbar spine disability. The Board finds, with consideration of the functional limitations due to pain, the disability most closely approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees but does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, or unfavorable ankylosis of the thoracolumbar spine. Although there is pain with range of motion, the spine is not shown to be in fixation, and the Veteran is not shown to exhibit other factors associated with ankylosis. VA examination in May 2021 shows that there is no ankylosis of the thoracolumbar spine. The examination report shows that the Veteran's forward flexion was to 45 degrees. Therefore, the Board finds that, even with consideration of any functional loss due to pain, the Veteran's lumbar spine disability did not more closely approximate favorable ankylosis of the thoracolumbar spine or forward flexion less than 30 degrees for the entire rating period as of May 2021, and therefore, does not approximate a higher 40 percent rating under Code 5237. The Board has considered whether a higher evaluation is warranted under Code 5243, which contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a. VA outpatient treatment records and VA examinations of record have not provided a diagnosis of intervertebral disc syndrome. Nevertheless, there was no incapacitating episodes, requiring bedrest prescribed by a physician due to the Veteran's lumbar spine disability. Accordingly, the Board finds that a higher rating is not warranted under Code 5243 at any point during the appeal period. Pertinent to any associated neurologic impairment, the Board observes that the evidence fails to show any associated objective neurologic abnormalities at any point during the appeal period. Furthermore, the remainder of the record is negative for any additional associated objective neurologic abnormalities, including bowel or bladder impairment. In short, the Veteran's assigned ratings are appropriate. 5. Entitlement to an initial rating higher than 10 percent for sinusitis prior to May 27, 2021 and higher than 30 percent thereafter The Veteran is currently assigned a 10 percent rating for his service-connected sinusitis prior to May 27, 2021 and a 30 percent rating from such date under 38 C.F.R. § 4.97, Code 6511. The General Rating Formula for Sinusitis (Codes 6510 to 6514) provides a noncompensable rating if detected by x-ray only; a 10 percent rating for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; a 30 percent rating for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; and a 50 percent rating following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. As noted, the rating criteria for Code 6511 pertaining to sinusitis specifically contemplate the functional impairment caused by sinus headaches. As the headache symptoms are already being separately compensated, to the extent possible, the Board will not consider headaches when evaluating the Veteran's sinusitis as pyramiding of symptoms is cautioned against in 38 C.F.R. § 4.14. See 38 U.S.C. § 1155; see also Esteban v. Brown, 6 Vet. App. 259 (1994). The Board, however, will not disturb the separate disability rating assigned for migraine headaches in the interest of due process. During October 2013 VA examination, physical examination revealed no obstruction of the nasal passages. There was no permanent hypertrophy of the nasal turbinates; no nasal polyps; no granulomatous conditions. X-ray reveals unremarkable examination of the paranasal sinuses. During April 2016 VA examination, physical examination revealed pain and tenderness in the affected sinus. The Veteran has had 6 non-incapacitating episodes of sinusitis characterized by pain and purulent discharge or crusting in the past 12 months. There were no incapacitating episodes. Diagnostic studies show sinusitis. There are no air-fluid levels. There is no gross evidence of mucosal thickening. The nasal septum is midline. The visualized paranasal sinuses are well pneumatized. The orbital rims are intact. Visualized skull is intact. There are no radiopaque foreign bodies. During May 2021 VA examination, physical examination revealed pain and tenderness. Symptoms of sinusitis include tenderness of affected sinus, purulent discharge. He reports 7 or more non-incapacitating episodes of sinusitis characterized by pain and purulent discharge or crusting in the past 12 months. No incapacitating episodes have been shown. The examiner indicates that the Veteran's sinusitis precludes his ability to concentrate or perform tasks that require sustained focus when symptomatic. He indicated that the Veteran's symptoms may limit work environments or use of computer when symptomatic and may limit ability to communicate during symptoms. Post-service treatment records show no specific treatment for the Veteran's sinusitis disability. As shown above, prior to May 27, 2021, the criteria for a rating higher than 10 percent for sinusitis is not warranted as three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting is not shown by the record. Rather, the October 2013 and April 2016 examinations revealed fewer than six non-incapacitating episodes per year of sinusitis and no incapacitating episodes. In addition, the clinical records do not reflect any findings which tend to meet, or more nearly approximate, these criteria. Hence, the criteria for a 30 percent rating have not been met. The Board has considered whether a higher rating by analogy is available through another diagnostic code that considers similar symptoms but has found none. The Board observes that the VA examinations document no polyps or any other symptomatology. Thus, the Board finds no other provision upon which to assign a rating higher than 10 percent for the Veteran's sinusitis prior to May 27, 2021. The Board notes that at no time during the appeal period to include from May 27, 2021, has the Veteran's service-connected chronic sinusitis reached the level of severity to warrant a rating higher than 30 percent. Significantly, the Veteran has not undergone radical surgery with chronic osteomyelitis. Further, there is no indication of near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting, shown after repeated surgeries, which is one of the requirements for the 50 percent (maximum) schedular rating available under the General Rating Formula. See 38 C.F.R. § 4.97, Code 6511. Accordingly, the Board finds no basis upon which to grant a rating higher than 30 percent at any time during the appeal period, including from May 27, 2021. 6. Entitlement to an initial rating higher than 20 percent for left shoulder disability Upon review of the record, there appears to be some discrepancy as to which is the Veteran's dominant hand. Indeed, the October 2013 VA examination report documents the Veteran is left-hand dominant. The Board observes, however, an April 2016 VA examination documents that the Veteran is right-hand dominant. Moreover, in the most recent May 2021 VA examination, the Veteran reported that he is right-hand dominant. As such, the Board finds the Veteran is right hand dominant. The Veteran's left shoulder disability is currently rated 20 percent disabling under Code 5201. According to Code 5201, limitation of motion of the arm at shoulder level warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a. Normal range of motion for the shoulder is defined as from 0 degrees of extension to 180 degrees of forward flexion; abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Generally, both measurements of forward flexion and abduction are relevant to determine range of motion in the affected shoulder, for purpose of applying Code 5201. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Also taken into consideration is the applicability of other Codes. See Butts v. Brown, 5 Vet. App. 532, 539 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Code 5202, for other impairment of the humerus, provides that malunion resulting in moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level corresponds to a 20 percent rating. Malunion with marked deformity, or recurrent scapulohumeral dislocation with frequent episodes and guarding of all arm movements corresponds to 20 percent minor upper extremity, 30 percent major upper extremity. Fibrous union of the humerus corresponds to 40 percent minor extremity, 50 percent major extremity. Nonunion (false flail joint) warrants 50 percent minor extremity, corresponds to 60 percent major extremity. Loss of head (flail shoulder) corresponds to 70 percent minor extremity, 80 percent major extremity. 38 C.F.R. § 4.71a. Finally, Code 5203, for malunion of the clavicle or scapula has a maximum rating of 20 percent in either arm, and does not provide any greater benefit. Id. As noted, the applicable VA regulations at 38 C.F.R. § 4.71a pertaining to the evaluation of musculoskeletal disorders were revised during the pendency of this appeal, effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). Although there were some substantive changes to the above-cited provisions, none of them affect the increased rating claim on appeal. As to those changes that did occur, Code 5201 now directly mentions that both flexion or abduction are the planes of motion to be considered. This was already a part of the existing VA caselaw as indicated, the new version expressly states the same. As for Code 5202, there is now an additional provision stating that a 20 percent rating is warranted for either the major or minor extremity, for impairment of the humerus with infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees). That provision does not affect the outcome of the present claim since a 20 percent rating already is in effect. During October 2013 VA examination, physical examination reveals left shoulder flexion to 170 degrees with no objective evidence of painful motion; left shoulder abduction to 170 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions without any functional loss and/or impairment. No left shoulder localized tenderness or pain on palpation was noted. No left shoulder guarding. Muscle strength testing was normal 5/5 for both abduction and forward flexion. No left shoulder ankylosis. All tests for rotator cuff conditions are negative. During April 2016 VA examination, the Veteran reports flare-ups in that he experiences pain with repeated overhead use of the left shoulder. Left shoulder range of motion reveals flexion to 140 degrees and abduction 140 degrees; external rotation to 90 degrees; internal rotation to 60 degrees. The range of motion does not contribute to functional loss. Pain was noted in flexion, abduction, and internal rotation. The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional functional loss noted. Flexion was 120 degrees; abduction was 120 degrees; external rotation was 90 degrees; internal rotation was 30 degrees. Pain, fatigue, weakness, and lack of endurance all caused functional loss. With repeated use over time, the Veteran's left shoulder range of motion is flexion to 120 degrees; abduction to 120 degrees; external rotation to 60 degrees; and internal rotation to 45 degrees. During flare-ups the Veteran's left shoulder is described as flexion to 120 degrees; abduction to 120 degrees; external rotation to 60 degrees; and internal rotation to 30 degrees. Muscle strength testing is forward flexion 4/5 and abduction 5/5. There is a reduction in muscle strength. The Veteran does not have muscle atrophy or ankylosis. Testing for rotator cuff was positive; there is left shoulder instability, clicking, and catching. The examiner indicated the Veteran has a dislocated left clavicle and that the dislocation affects range of motion. There is tenderness on palpation of the AC joint. During May 2021 VA examination, the Veteran reports monthly flare-ups that lasts for less than an hour. He indicated that there is sharp severe pain with movement and lifting. Left shoulder active range of motion reveals 70 degrees of flexion; 70 degrees of abduction; 65 degrees of internal rotation; and 65 degrees of external rotation. Pain is noted with all movements. Passive range of motion is the same as active range of motion with pain in all movements. No evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and without any loss of motion. Estimated range of motion in degrees after repeated use is flexion to 65 degrees; abduction to 65 degrees; internal rotation 60 degrees; and external rotation 60 degrees. Estimated range of motion during flare-ups is flexion to 65 degrees, abduction to 65 degrees, internal rotation to 60 degrees, and external rotation to 60 degrees. No muscle atrophy or ankylosis. No left shoulder dislocations or instability. The Veteran reports that he is unable to lift loads above his shoulder. The examiner indicated that the Veteran was unable to tolerate rotator cuff condition tests due to pain. The right shoulder was also tested and was normal in all respects. The range of motion to 70 degrees flexion or abduction on May 2021 VA examination, along with shoulder dislocation (documented on April 2016 VA examination), does not show that his flexion or abduction is limited to midway between the side and shoulder level. Even if it did, for the minor arm this would still warrant a 20 percent rating. For a 30 percent rating to be assigned, motion would need to be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Code 5201. Additionally, there is no symptomatology under Code 5202 that would warrant any increased rating, which is for fibrous union of the humerus, as VA examiners ruled out that manifestation and the VA examinations did not find any issue affecting the left humerus. Also, there was no indication of left shoulder ankylosis at any point, or other possible justification for applying any other diagnostic code from the VA rating criteria. Accordingly, in light of the above, for the current claim for left shoulder disability, since the preponderance is unfavorable, the VA benefit-of-the-doubt doctrine is not applicable, and the claim is denied. 7. Entitlement to an initial rating higher than 30 percent for psychiatric disability prior to May 26, 2021 and higher than 70 percent thereafter The Veteran's psychiatric disability is currently rated as 70 percent disabling effective from May 26, 2021 (the date of the most recent VA examination) under Code 9411 for posttraumatic stress disorder (PTSD). Prior to that date his psychiatric disability was rated at 30 percent. He asserts that higher ratings are warranted. As noted, the Veteran's PTSD has been rated under Code 9411, which is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9411. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran's mental disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. A 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); 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 for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). During October 2013 VA examination, psychiatric symptoms shown were depressed mood, anxiety, and suspiciousness. The Veteran also reported irritability at times with a short fuse. Mental status examination reveals the Veteran is alert with good eye contact. He reports that he does not feel too motivated, although he is working full time midnights. He reports feeling irritable sometimes. Affect is somewhat constricted. There is no suicidal or homicidal ideations or plans. No startle response. The examiner diagnosed adjustment disorder with mixed anxiety and depressed mood. During April 2016 VA examination, psychiatric symptoms included depressed mood, anxiety, and chronic sleep impairment. Mental status evaluation revealed the Veteran was alert and oriented times three. His attention was well sustained. He exhibited good eye to eye contact. He had good grooming and hygiene. His speech was normal rate, rhythm, and fluency, and goal directed. No thought disorganization was noted. No suicidal or homicidal ideation was reported. His mood was anxious and congruent to thinking. His affect was appropriate and full in range. The Veteran reported that he lives with his girlfriend. He visits his family on holidays. He goes out once a month with his girlfriend to a bar or a friend's house. During May 2021 VA examination, the examiner noted that the Veteran exhibits occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Since 2020 the Veteran reported that he has been employed at a company where he services electric meters. The Veteran reported that he is in another relationship and that he lives with her and her fifteen-year-old son. The relationship is stable. He only sees his own family a couple of times a year due to easily losing his temper. He has limited online contact with other Veterans. Psychiatric symptoms include depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation. The Veteran was well groomed and dressed appropriately. He was verbal, cooperative, alert, and oriented except for the day of the month and the local city. His mood was anxious (unable to sit still) and depressed (stammering) with congruent affect. Thought content was normal. Thought process was linear and logical. He reported suicidal ideation without current intentions, or plans. He reported no symptoms and exhibited no signs or psychosis. Post-service treatment records show ongoing treatment for his psychiatric disability. For the period prior to May 26, 2021, an evaluation exceeding 30 percent is not demonstrated. The record does not establish that the Veteran's PTSD results in 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships. Indeed, at no time during this period, does the record reflect that the Veteran had difficulty maintaining social relationships. According to the Veteran, he has a good relationship with his girlfriend and other friends, and he sees his family at holidays. Further, the record does not show any episodes of impaired judgment, impaired abstract thinking or disturbances of motivation and mood, contemplating a 50 percent rating. Rather, the October 2013 and April 2016 VA examiners that personally examined the Veteran observed him to be neatly groomed, cooperative, with his memory, attention, insight, and judgment intact. Clearly, such findings are not consistent with a higher 50 percent rating. In short, the Board finds that the Veteran's symptoms during this period prior to May 26, 2021 do not impact his social and occupational functionality in such a way to result in occupational and social impairment, with reduced reliability and productivity. The evidence does not reflect that the Veteran's service-connected PTSD has been manifested by symptoms of such severity to warrant an evaluation higher than 30 percent. The Veteran's PTSD symptoms prior to May 26, 2021 are of the same severity, nature, type, and duration as those associated with a 30 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against a finding of entitlement to an evaluation in excess of 30 percent for the period prior to May 26, 2021. From May 26, 2021, the Board finds that, collectively, the above-described evidence reflects that throughout the period under consideration, the Veteran's psychiatric symptoms have not been shown to be of the type, extent, frequency, or severity as the symptoms expressed in the rating schedule to support a 100 percent evaluation. At no time has the Veteran reported, and the record fails to show, auditory hallucinations, gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name-the symptoms listed in the rating criteria as indicative of the level of impairment for which a 100 percent rating is assignable. Further, VA treatment records do not document, nor has any VA examiner found, that the Veteran has total occupational and total social impairment due to his PTSD. VA examination reports document the Veteran has relationships with family and a few Veterans. Indeed, he has been living with his current girlfriend for a few years. He appears to have a good relationship with her and her teenage son. Further, he has been able to maintain employment for the entire appeal period. The probative evidence of record demonstrates that the Veteran's functioning is better than total occupational and total social impairment. In fact, the Veteran has been found to have occupational and social impairment with reduced reliability and productivity. Although the Veteran's PTSD has showed a slight decrease in severity, the Board finds that the symptomatology more nearly approximates his current 70 percent rating. The Board finds, however, the total disability picture does not more nearly approximate total occupational and total social impairment. The Board makes this finding based both upon the evidence of record and the Veteran's statements. Under these circumstances, the Board finds that the Veteran is not shown to have experienced symptoms of the type, extent, frequency, and severity to result in total occupational and social impairment as contemplated by the rating criteria for a 100 percent rating. The 70 percent rating currently assigned is recognition of the significant occupational and social impact of his service-connected PTSD. In other words, the total disability picture does not support a finding of a higher rating. Indeed, his symptoms impair him socially and occupationally, but not to a level that would warrant a higher rating. For the foregoing reasons, the Board finds the claim for a rating higher than 70 percent from May 26, 2021 for the PTSD disability is denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The Board observes, however, as the preponderance of the evidence is against assignment of a higher rating at any pertinent point, that doctrine is not applicable. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.