Citation Nr: 21071498 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-34 248 DATE: November 30, 2021 ORDER Entitlement to an initial 30 percent, but no higher, rating throughout the appeal period for migraines associated with traumatic brain injury (TBI) is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome is denied. Entitlement to a separate 10 percent, but no higher, rating from July 26, 2021 for painful limitation of extension of the left knee is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 10 percent for right thumb strain is denied. Entitlement to an initial rating in excess of 10 percent for posterior left thigh shrapnel wound is denied. Entitlement to an initial compensable rating for left thigh scar, residual of shrapnel wound is denied. Entitlement to an initial rating in excess of 10 percent for seizure disorder associated with TBI is denied. REMANDED Entitlement to service connection for left ankle condition is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to August 16, 2021 is remanded. Entitlement to an initial rating in excess of 10 percent for TBI prior to August 16, 2021 is remanded. Entitlement to an initial rating in excess of 70 percent for PTSD with TBI from August 16, 2021 is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's migraine headaches have been manifested by characteristic prostrating attacks occurring several times per week; his migraine headaches are not manifested by completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Throughout the appeal period, the Veteran's left knee patellofemoral syndrome has been manifested by flexion at most limited to 110 degrees with pain. 3. Prior to July 26, 2021, the Veteran's left knee disability was manifested by full extension without pain. 4. From July 26, 2021, the Veteran's left knee disability has been manifested by full extension with pain. 5. Throughout the appeal period, the Veteran's right thumb strain has been manifested by an actually painful joint with no gap between the thumb pad and fingers, with the thumb attempting to oppose the fingers. 6. Throughout the appeal period, the Veteran's posterior left thigh shrapnel wound has been manifested by aching, cramping, and sharp pain, without fascial defects and without impairment of muscle substance or function. 7. Throughout the appeal period, the Veteran's left thigh scar has been 0.5 centimeter by 0.5 centimeter, without pain, and is not unstable. 8. The Veteran's seizure disorder has not resulted in at least 1 major seizure in the last 2 years or at least 2 minor seizures in the last 6 months. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for an initial 30 percent, but no higher, rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2021). 2. The criteria for an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2021). 3. From July 26, 2021, the criteria for a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2021). 4. The criteria for an initial rating in excess of 10 percent for right thumb strain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5228 (2021). 5. The criteria for an initial rating in excess of 10 percent for posterior left thigh shrapnel wound are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5313 (2021). 6. The criteria for an initial compensable rating left thigh scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801-7804 (2021). 7. The criteria for an initial rating in excess of 10 percent for seizure disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.121, 4.124a Diagnostic Code 8911 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 2002 to January 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2014 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased 10 percent rating for the Veteran's left knee condition, effective January 4, 2011. The Veteran testified before the Board at a hearing held by the undersigned in October 2018. A transcript of the hearing is of record. Subsequently, the Board remanded these claims in June 2021 for further development. Thereafter, in a September 2021 rating decision, the AOJ awarded an increased 30 percent rating for the Veteran's migraines, effective August 5, 2021, and the AOJ awarded an increased 10 percent rating for his right thumb strain, effective January 4, 2011. In addition, the AOJ awarded a 70 percent rating for the Veteran's PTSD with TBI, effective August 16, 2021. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. 1. Migraine Headaches The Veteran generally contends he is entitled to increased ratings for his migraine headaches. The AOJ has assigned a noncompensable rating prior to August 5, 2021 and a 30 percent rating thereafter for the Veteran's migraines under Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating (which is the maximum schedular rating available under Code 8100) is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that the Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MED. DICTIONARY 1534 (32nd ed. 2012). According to STEDMAN'S MED. DICTIONARY 1461 (27th ed. 2000), "prostration" is defined as "a marked loss of strength, as in exhaustion." The phrase "completely prostrating" (which is required for a 50 percent rating) is defined as "completely lacking in vitality or will" and "powerless to rise." See Johnson v. Wilkie, 30 Vet. App. 245 (2018). The Court has indicated this phrase means the headaches "must render the veteran entirely powerless." Id. at 253 (emphasis in original). This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Further, 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)). At an October 2010 VA examination, completed approximately three months prior to his separation from service, the Veteran reported having constant, severe headaches one to two times per month. Furthermore, he reported going to work when he has the headaches, but he required medication. He described the pain as a 7 out of 10. A review of the VA treatment records illustrates that the Veteran reported having chronic recurrent migraines with vomiting two times per month at an August 2017 appointment. He was not taking medications for his migraines at the time. In September 2018, the Veteran reported having four to five headaches per week that start in the front of his head and include throbbing and pressure pain. Furthermore, at the September 2018 appointment, he reported having occasional nausea and vomiting with bad headaches. In March 2021, the Veteran reporting having migraines more often in the preceding one and one-half months, with pressure behind the left eye and pain in the left temple. The Veteran underwent a VA examination in August 2021. The Veteran reported having almost daily headaches that wake him from sleep and are immediately associated with pain behind the left eye, nausea, vomiting, blurred vision, light sensitivity, and sound sensitivity. The Veteran reported he did not take medications for his migraines. The symptoms of his migraines were constant head pain, pulsating or throbbing head pain, pain localized to one side of his head, and pain behind the left eye. Non-headache symptoms were nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The typical head pain was mostly constant but started to subside toward evening. The examination report reflects that the Veteran had characteristic prostrating attacks once every month. Furthermore, the examination report reflects that the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner indicated the Veteran's migraines caused functional impact in the form of one to two work weeks lost in the preceding year. In addition, the examiner stated the Veteran's migraines can be severe enough that he occasionally misses work, especially when the nausea and vomiting are really bad. Based on a review of the relevant evidence and the applicable law and regulations, the Board concludes that a 30 percent, but no higher, rating is warranted throughout the appeal period for the Veteran's service-connected migraine headaches. Notably, throughout the appeal period, the Veteran reported having severe headaches at least once a month. In addition, the Veteran has described having symptoms of vomiting, nausea, and throbbing pain during his migraines. Although, there is no actual notation of "prostrating attacks" prior to the August 2021 VA examination, the Veteran's description of his symptoms and frequency of his migraine headaches has been consistent throughout the appeal period. Thus, based on the medical and lay evidence, the Board concludes that a 30 percent rating is warranted throughout the appeal period based on prostrating attacks occurring on average once a month. A rating in excess of 30 percent is not warranted at any point as there is there is no objective or lay evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Of note, the August 2021 VA examination report reflects the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges that the August 2021 VA examination report reflects that the Veteran's migraines can be severe enough that he occasionally misses work. However, the record does not indicate that the Veteran's prostrating attacks are capable of resulting in severe economic inadaptability. Notably, the Veteran is currently employed. In addition, there is no indication in the record that the Veteran's migraine headaches render him entirely powerless. See Johnson, 30 Vet. App. at 253. Without episodes of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a rating in excess of 30 percent is not warranted. The Board acknowledges the Veteran's description of pain behind the left eye, nausea, vomiting, blurred vision, light sensitivity, and sound sensitivity. The Veteran is competent to report such lay observable symptomatology, and the Board finds his statements to be credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's statements do not indicate that he has experienced migraine headaches amounting to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, a preponderance of the evidence is against a finding of migraine headaches amounting to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, the Board finds that the evidence more nearly approximates an assignment of a 30 percent, but no higher, rating throughout the appeal period for the Veteran's migraine headaches. 2. Left Knee The Veteran generally contends he is entitled to an increased rating for his left knee disability. The AOJ has assigned the Veteran's left knee disability a 10 percent rating throughout the appeal period under hyphenated Diagnostic Code 5003-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's left knee disability is rated, by analogy, under the criteria for degenerative arthritis (Diagnostic Code 5003) and limitation of flexion (Diagnostic Code 5260). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). The rating criteria for subluxation and lateral instability under Diagnostic Code 5257 were revised during the course of the Veteran's appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under the amended rating criteria for patellar instability under Diagnostic Code 5257, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the amended rating criteria for recurrent subluxation or lateral instability under Diagnostic Code 5257, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Furthermore, the Board notes that the rating criteria for arthritis under Diagnostic Code 5003 were revised during the course of the Veteran's appeal, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). However, the changes to Diagnostic Code 5003 are in name only in that the amended criteria encompass any degenerative arthritis, other than posttraumatic arthritis. Thus, the amended rating criteria have not affected the Veteran's ratings for his left knee disabilities under Diagnostic Code 5003. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Additionally, VA's Office of General Counsel has determined that the amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. Consideration of other diagnostic codes for rating a knee disability (5256, 5258, 5259, 5262, 5263) is inappropriate in this case as the Veteran's left knee disabilities do not include the pathology required in the criteria for those diagnostic codes (ankylosis, semilunar cartilage impairment, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. Turning to the evidence of record, at an October 2010 VA examination, completed approximately three months prior to his separation from service, the Veteran reported having stiffness, sharp pain, and giving away. He described the pain as an 8 out of 10. He reported the pain is brought on by physical activity and random activity, and he stated the pain is relieved by rest. He reported having sharp pain on the side of his knee, and he reported having pain around his kneecap with repetitive activity. He reported receiving no treatment for his knee. The physical examination revealed that the Veteran had full range of flexion and extension without pain. Repetitive use was possible and there was no additional limitation of motion upon repetitive use testing. Instability testing of the knee was normal. Furthermore, the Veteran had no ankylosis, but he had crepitus in the left knee. The examination report reflects that the functional impact of the condition was that it affects his ability to walk and run long distances, sit, squat, and kneel. The Veteran did not use any assistive devices. A November 2016 VA treatment record reflects that the Veteran reported worsening knee pain over one to two years. The record also reflects that stretching and oral medications did not help. The Veteran received a steroid injection in his left knee at the visit. The Veteran attended a VA examination in July 2021 for an evaluation of his left knee. The examiner diagnosed the Veteran with patellofemoral pain syndrome and degenerative arthritis. The Veteran had flexion to 130 degrees with pain and full extension with pain. The Veteran's passive of range of motion showed the same reduction in flexion and full extension. The examiner noted that range of motion itself contributes to functional loss in the form of it limits his ability for prolonged standing, ambulation, kneeling, and squatting. The examiner noted the Veteran had pain with weight-bearing and active motion. Furthermore, the examiner noted the pain causes functional loss in the form of it limits his ability for prolonged standing, ambulation, kneeling, and squatting. The Veteran had no objective evidence of crepitus and no localized tenderness or pain to palpation. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Upon repeated use, the examiner noted that pain caused functional loss. The examiner estimated the Veteran's flexion would be to 120 degrees and extension would be to 0 degrees. During flare-ups, the examiner noted that pain would cause functional loss. The examiner estimated that during flare-ups the Veteran's flexion would be to 110 degrees and his extension would be to 0 degrees. The examiner noted the Veteran had no additional factors contributing to disability. The Veteran had no ankylosis. The Veteran had no recurrent subluxation or persistent instability, no ligament tear, and no recurrent patellar instability. The examiner noted the Veteran did not have a meniscal condition. The Veteran was noted to not use any assistive devices for his left knee. Joint stability testing was normal. In terms of the functional impact of the Veteran's left knee disability, the examiner noted the Veteran lost 0 to 1 week of work time in the last 12 months. Furthermore, the examiner noted the Veteran's degenerative arthritis limits his ability for prolonged standing, ambulation, kneeling, and squatting. At the examination, the Veteran reported left knee pain, and he reported receiving no treatment. He reported flare-ups consisting of increased knee pain, characterized as aching pain at a moderate level of severity. He reported that increase in activity and use are precipitating factors of the flare-ups, they last several days, and are alleviated by rest. A July 2021 X-ray of the left knee showed moderate narrowing of both compartments consistent with degenerative changes. In an October 2018 statement, the Veteran's spouse reported the Veteran has knee pain and difficulty with bending. Regarding the Veteran's 10 percent rating for left knee osteoarthritis under Diagnostic Code 5003-5260, the weight of the competent and credible evidence is against a finding that the Veteran has had flexion in his left knee that has been less than 45 degrees, even when considering additional factors of pain and functional impairment. The medical evidence addressed above illustrates that the Veteran's left knee flexion has been at most limited to 110 degrees during flare ups. See July 2021 VA examination report. As such, the Board concludes that even when considering the additional contributing factor of pain and the functional impairment, the evidence does not more nearly approximate flexion limited to less than 45 degrees. Therefore, a preponderance of the evidence is against a rating in excess of 10 percent based on limitation of flexion at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board has considered whether the Veteran is entitled to a separate compensable rating for limitation of extension of his left knee under Diagnostic Code 5261. The Board concludes the evidence more nearly approximates a finding that the Veteran is entitled to a 10 percent, but no higher, rating for an actually painful left knee joint on extension from July 26, 2021 under Diagnostic Code 5261 given the evidence of an actually painful left knee joint on extension. The July 2021 VA examination report reflects that the Veteran had full extension with pain in the left knee. Therefore, based on the competent and credible medical evidence showing pain with extension in the left knee, the Board concludes a 10 percent, but no higher, rating for an actually painful left knee joint on extension beginning July 26, 2021 is warranted. A rating in excess of 10 percent is not warranted at any point because the Veteran has had no point where his extension in his left knee has been limited to more than 10 degrees, even when considering the additional factor of pain. Therefore, the evidence warrants a separate 10 percent, but no higher, rating for his left knee based on painful extension pursuant to 38 C.F.R. § 4.59 beginning July 26, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A compensable rating prior to July 26, 2021 under Diagnostic Code 5261 is not warranted as the October 2010 VA examination report reflects no pain with extension. The Board acknowledges that the Court has held that 38 C.F.R. § 4.59 does not require "objective" evidence of painful motion and can be satisfied with lay and other non-medical evidence. Petitti, 27 Vet. App. at 429. However, the Veteran's reports of knee pain prior to July 26, 2021 do not specifically illustrate the Veteran had an actually painful left knee joint on extension. As such, a separate rating for pain with extension is not warranted prior to July 26, 2021. In evaluating the Veteran's increased rating claim for his left knee, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board recognizes the Veteran's statements that his left knee condition causes pain. Furthermore, he reported his knee disability causes difficulties with prolonged standing, ambulation, kneeling, and squatting. However, even when considering the reported functional loss, the Veteran's disability picture for his left knee does not more nearly approximate flexion limited to 30 degrees throughout the appeal period or extension limited to 15 degrees from July 26, 2021. The Board has also considered whether the Veteran is entitled to a separate rating for his left knee under Diagnostic Code 5257 for instability as the Veteran reported at the October 2010 VA examination that his knee gives away. The Court has held that Diagnostic Code 5257 does not require objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). The Board acknowledges the Veteran is competent to report experiencing such symptoms of giving way of his knee. However, the Veteran has not reported experiencing such symptoms at any other time during the appeal period, including during the July 2021 VA examination or in any lay statements. Thus, the Board places lesser weight of probative value on his statement of experiencing giving away of his left knee at the October 2010 examination for purposes of determining whether he is entitled to a separate rating for instability, as it is not consistent with the remainder of the record. Additionally, there is no objective evidence of instability per Diagnostic Code 5257 based on the July 2021 VA examination. The examiner noted that the Veteran did not have recurrent subluxation, persistent instability, or recurrent patellar instability and instability testing was negative. In addition, at the October 2010 VA examination, instability testing was negative. The Veteran has not used any assistive devices, such as a brace or cane, during the appeal period. Therefore, the Board finds that a preponderance of the evidence is against a finding that the Veteran is entitled to a separate rating for recurrent subluxation or lateral instability in the left knee under both the prior rating criteria and amended rating criteria. In summary, the Board finds the criteria for a rating in excess of 10 percent for the Veteran's left knee patellofemoral pain syndrome under Diagnostic Code 5003-5260 have not been met. The Board finds that the Veteran is entitled to a separate 10 percent, but no higher, rating for painful limitation of extension of the left knee under Diagnostic Code 5261 beginning July 26, 2021. The Veteran is not entitled to any further separate ratings for the left knee. 3. Right Thumb The Veteran generally contends he is entitled to an increased rating for his right thumb disability. The AOJ has assigned a 10 percent rating for the Veteran's right thumb strain under Diagnostic Code 5228. The evidence reflects the Veteran is right hand dominant. For the major hand, under Diagnostic Code 5228, a 10 percent rating is warranted for a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers. A 20 percent rating is warranted for a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers. 38 C.F.R. § 4.71a. Turning to the evidence of record, at an October 2010 VA examination, completed approximately three months prior to his separation from service, the Veteran reported intermittent pain a couple of times a day that lasts one-half hour. He said the pain does not travel, and he said the pain is aching and sharp. He described the pain as being 2 to 8 out of 10. He reported the pain is brought on by physical activity and comes on spontaneously, and he stated the pain is relieved by rest. He also reported the pain is relieved with aspirin and Tylenol. In addition, he stated it is difficult at times to make a fist. He reported the function impairment was that it affected his ability to use his thumb in the normal manner. The physical examination revealed that the Veteran had full flexion and extension in the metacarpal joint without pain and interphalangeal joint without pain. The Veteran's abduction was reduced to 50 degrees with pain. Tips of the fingers could approximate the transverse crease of the palm for all fingers. The gap between the tip of the thumb and thumb pad was 0 centimeters. The Veteran performed repetitive use without any additional limitation of motion. The Veteran had no ankylosis. The examiner noted that the Veteran could tie his shoelaces, fasten buttons, and pick up and tear a piece of paper without difficulty. Grip strength was normal bilaterally. The Veteran attended a VA examination in July 2021 for an evaluation of his right thumb disability. Range of motion testing revealed full extension without pain and full flexion without pain. Range of motion was the same on passive range of motion. There was no gap between the pad of the thumb and the fingers or the finger and the proximal transverse crease of the hand. There was objective evidence of localized tenderness or pain on palpation of the thumb joint. The examiner described it as moderate palpation. There was no additional loss of range of motion or functional loss on repetitive use testing. Upon repeated use over time, the examiner noted that pain caused functional loss. The examiner estimated the Veteran's extension of the thumb to 0 degrees and flexion to 95 degrees at the metacarpal joint and extension to 0 degrees and flexion to 85 degrees at the interphalangeal joint. Upon repeated use, the examiner estimated there would be no gap between the pad of the thumb and the fingers or the finger and the proximal transverse crease of the hand. During flare-ups, the examiner noted that pain would cause functional loss. The examiner estimated the Veteran's extension to 0 degrees and flexion to 90 degrees at the metacarpal joint and extension to 0 degrees and flexion to 80 degrees at the interphalangeal joint. The Veteran had full strength and no ankylosis in any thumb joint. In terms of the functional impact of the Veteran's right thumb disability, the examiner noted that the Veteran lost 0 to 1 week of work time in the last 12 months. Furthermore, the examiner noted that the Veteran's right thumb strain impairs his ability to grip and perform repetitive tasks. At the examination, the Veteran reported an inability to close his hand into a fist and constant aching pain to the right thumb joint. Furthermore, he reported taking Tylenol for his symptoms. He reported moderate flare-ups where the pain increases. He stated the frequency of the flare-ups vary with activity and use, they last a couple of hours, and he described them as aching pain that impaired his ability to grip and perform repetitive tasks. He stated that increase in activity and use are precipitating factors of the flare-ups and they are alleviated by medication and rest. A July 2021 X-ray of the right hand was negative. Applying the criteria of Diagnostic Code 5228, the Veteran was able to oppose his thumb to his fingers with less than a one inch (2.5 centimeter) gap, and therefore a preponderance of the evidence is against a rating in excess of 10 percent based on limitation of motion of the thumb. In evaluating the Veteran's increased rating claim for his right thumb, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board recognizes the Veteran's statements that his right thumb condition causes pain. Furthermore, he reported his thumb disability impairs his ability to grip and perform repetitive tasks. However, even when considering the reported functional loss, the Veteran's disability picture for his right thumb disability does not more nearly approximate that there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers when the Veteran attempts to oppose his thumb to his fingers. The Veteran's 10 percent rating is already compensating him for the pain and functional loss that he experiences. There is also no evidence of any ankylosis of the thumb; therefore, the Veteran is not entitled to a higher rating under Diagnostic Codes 5216-5224. In sum, the criteria for a rating in excess of 10 percent for right thumb strain have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Left Thigh The Veteran generally contends he is entitled to an increased rating for his posterior left thigh shrapnel wound. The AOJ has assigned the Veteran's left thigh disability a 10 percent rating throughout the appeal period under Diagnostic Code 5313. Diagnostic Code 5313 provides evaluations for a disability of Muscle Group XIII. The functions of these muscles are as follows: extension of hip and flexion of knee; outward and inward rotation of flexed knee; and acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint. The muscle group includes the posterior thigh group, hamstring complex of 2-joint muscles: (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus. 38 C.F.R. § 4.73. Under Diagnostic Code 5313, a moderate injury warrants a 10 percent rating, a moderately severe injury warrants a 30 percent rating, and a severe injury warrants a 40 percent rating. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). A moderate muscle disability comprises a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. There should be evidence of in-service treatment for the wound and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars; small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance or impairment of muscle tonus; and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability comprises a through-and-through or deep open penetrating wound by a small high-velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability contemplates through-and-through or deep penetrating wounds due to high-velocity missile, or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4). Turning to the evidence of record, at an October 2010 VA examination, completed approximately three months prior to his separation from service, the examiner noted the Veteran had retained shrapnel in the left thigh. The Veteran reported getting pain intermittently three times a week that lasts one-half hour. He described the pain as aching, cramping, and sharp. He described the pain as being a 5 out of 10. The Veteran stated the pain comes spontaneously and is relieved by rest. He stated he can function with medication. He reported no weakness, but he reported having impairment in coordination at times. Furthermore, he stated he has to stretch at times to keep it functional. The examiner noted that the Veteran's posterior left thigh shrapnel wound caused no real functional impact. The physical examination revealed the Veteran had an entrance wound of one centimeter in diameter and there was no exit wound. There was no lowered endurance or impairment of coordination. The Veteran had no muscle weakness, no tendon damage, no bone damage, no joint damage, and no nerve damage. A January 2020 VA treatment note reflects that the Veteran reported having burning pain and that he can feel the shrapnel in his left thigh. Furthermore, he reported numbness in his left thigh. At a July 2021 VA examination, the examiner noted the Veteran had shrapnel that penetrated the Veteran's left thigh and that the fragment is still in his thigh as it was determined to be inoperable. Furthermore, the examiner noted that the Veteran has pain in his thigh. The examiner noted the Veteran's injury is to Muscle Group XIII. The examiner noted the Veteran had an entrance scar that was small or linear, indicating short track of missile through muscle tissue. He described the scar as being 0.5 centimeter by 0.5 centimeter. The examiner noted the Veteran had no known fascial defects or evidence of fascial defects associated with his muscle injury and no muscle injury affecting muscle substance or function. Furthermore, the examiner noted that the Veteran did not have loss of power, weakness, lowered threshold of fatigue, fatigue and/or pain, or uncertainty of movement. In addition, the Veteran had normal strength in Muscle Group XIII and no muscle atrophy. In terms of the functional impact of the Veteran's posterior left thigh shrapnel wound, the examiner noted that the Veteran lost 0 to 1 week of work time in the last 12 months. Furthermore, the examiner noted that the Veteran's muscle injury to his left thigh limits his ability for prolonged standing and ambulation. Aside from the medical evidence addressed above, in an October 2018 statement, the Veteran's father reported the Veteran has a piece of metal in his left thigh that he complains about frequently. Upon review of the record, the Board finds that the Veteran's symptoms most nearly approximate the currently assigned 10 percent rating for his Muscle Group XIII injury for moderate muscle impairment due to sharp pain and aching pain that is relieved with rest and medication. A preponderance of the evidence is against a finding that the Veteran's symptoms are more analogous to a moderately-severe disability of Muscle Group XIII. See 38 C.F.R. §§ 4.56(d)(3). There has been no objective evidence of loss of deep fascia, muscle substance, or normal firm resistance of muscles, positive impairment of strength and endurance, or other signs or symptoms of similar severity to those listed in the findings for a moderately severe muscle injury. Other than the aching, cramping, and sharp pain described above, there were no other objective abnormalities indicated on the VA examinations or in the treatment records. The Board therefore finds that the overall disability picture for the Veteran's posterior left thigh shrapnel wound does not more closely approximate a 20 percent rating for moderately severe or severe muscle injury under Diagnostic Code 5313. While the Board has also considered other potentially applicable diagnostic codes, the Veteran's disability is not shown to involve other body systems. Therefore, this disability does not warrant an evaluation under any other provisions of the rating schedule. As such, the criteria for a rating in excess of 10 percent for the Veteran's posterior left thigh shrapnel wound have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 5. Left Thigh Scar The Veteran generally contends he is entitled to an increased rating for his left thigh scar. The AOJ has assigned the Veteran's left thigh scar a noncompensable rating throughout the appeal period under Diagnostic Code 7802. Scars are evaluated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 (there is no Diagnostic Code 7803). Diagnostic Code 7800 evaluates scars of the head, face, and neck. However, Diagnostic Code 7800 is inapplicable as the Veteran's scar is not located on his head, face, or neck. Diagnostic Code 7801 evaluates scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent evaluation is assigned for an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is assigned for an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square cm). A 40 percent rating is assigned for an area or areas of 144 square inches (929 square centimeters) or greater. Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Superficial and nonlinear scars not of the head, face, or neck are evaluated under Diagnostic Code 7802. Under this Diagnostic Code, a 10 percent rating is assigned for scars that cover an area or areas of at least 144 square inches (929 square centimeters). Note 2 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 assigns ratings for scars that are unstable or painful. This Diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the Diagnostic Code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. This Diagnostic Code directs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Since August 13, 2018, Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7801 was otherwise unchanged by the August 13, 2018 amendments. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. Diagnostic Codes 7804 and 7805 were not changed by the August 13, 2018 amendments. Turning to the evidence of record, at an October 2010 VA examination, completed approximately three months prior to his separation from service, the examiner noted the Veteran had a scar on the left thigh from a retained piece of shrapnel. The scar was one centimeter in diameter. The scar was not painful, not disfiguring, there was no limitation of motion, and there was no limitation of function. Furthermore, the examiner noted there was no breakdown, no inflammation, no edema, and no keloid. In addition, the scar was level. The Veteran attended a VA examination in July 2021 for an evaluation of his scar where the examiner noted the Veteran had one scar that was 0.5 centimeters by 0.5 centimeters, and the examiner noted the scar was not painful or unstable. Furthermore, the examiner noted the scar was not tender to palpation. The examiner noted there was underlying soft tissue damage, and he described the underlying tissue damage as having a total area of 0.25 square centimeters. There was no limitation of function from the scar. Regarding the Veteran's noncompensable rating for his left thigh scar under Diagnostic Code 7802, the Board concludes that the evidence most nearly approximates the currently assigned noncompensable rating under Diagnostic Code 7801. For the reasons that follow, the Board has concluded that the Veteran's left thigh scar currently rated under Diagnostic Code 7802 is most appropriately evaluated under Diagnostic Code 7801 for the entire appeal period, as that Diagnostic Code evaluates scars that are associated with underlying soft tissue damage. VA can change the diagnostic code that a particular disability is rated under so long as the rating under that diagnostic code has not been in effect for 20 years. See 38 C.F.R. § 3.951(b); see Murray v. Shinseki, 24 Vet. App. 420, 425 (2011). VA must explain the change in the diagnostic code. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The July 2021 examination report reflects that the Veteran's left thigh scar is characterized by underlying soft tissue damage. Thus, the Board concludes that Diagnostic Code 7801 best reflects the symptomatology of the Veteran's left thigh scar. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In addition, changing the Diagnostic Code from 7802 to 7801 does not reduce the Veteran's rating at any time during the appeal period. Accordingly, the Board has changed the Diagnostic Code to 7801 for the Veteran's left thigh scar for the entire appeal period. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7801 because the Veteran's left thigh scar covers an area less than 6 square inches (39 square centimeters). The Veteran's scar is 0.5 centimeters by 0.5 centimeters. Therefore, a compensable rating under the pre- or post- August 13, 2018 criteria is not warranted. Although the Board has changed the Diagnostic Code from 7802 to 7801, a compensable rating would not be warranted under the pre- or post- August 13, 2018 Diagnostic Code 7802 criteria since the scar covers an area less than 144 square inches (929 square centimeters). Furthermore, a compensable rating is not warranted at any point during the appeal under Diagnostic Code 7804 as a preponderance of the evidence is against a finding that the Veteran's scar is unstable or painful. Additionally, there has not been any limitation of function shown to warrant a rating pursuant to Diagnostic Code 7805. Accordingly, the Board finds that a compensable rating is not warranted for the Veteran's left thigh scar. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, however, the Veteran has not reported any symptoms specific to the scar, including pain to the scar. Jandreau, 492 F.3d at 1377. The medical records do not show that the Veteran's left thigh scar is manifested by an area or areas of at least 6 square inches (39 square centimeters) or at least 144 square inches (929 square centimeters). In sum, the criteria for a compensable rating for the Veteran's left thigh scar have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 6. Seizure Disorder The Veteran generally contends he is entitled to an increased rating for his seizure disorder. The AOJ has assigned the Veteran's seizure disorder a 10 percent rating throughout the appeal period under Diagnostic Code 8999-8911. A Diagnostic Code ending in "99" is an evaluation by analogy for a disability not specifically listed in the rating code. In this case, the Veteran's seizure disorder associated with TBI is evaluated by analogy under Diagnostic Code 8911, the criteria for petit mal epilepsy, which, in turn, is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Note (1) to Diagnostic Code 8911 provides that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2) provides that a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a. The General Rating Formula for Major and Minor Epileptic Seizures provides that a confirmed diagnosis of epilepsy with a history of seizures is rated 10 percent disabling. Epilepsy with at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months is rated 20 percent disabling. Epilepsy with at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least 1 major seizure per month over the last year is rated 100 percent disabling. 38 C.F.R. § 4.124a. Note (1) to the General Rating Formula for Major and Minor Epileptic Seizures provides that, when continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent. This rating will not be combined with any other rating for epilepsy. Note (2) provides that, in the presence of major and minor seizures, the predominating type of epilepsy is to be rated. Id. Note (3) provides that there will be no distinction between diurnal and nocturnal major seizures. Under 38 C.F.R. § 4.121, to warrant a rating, the seizures must be witnessed or verified at some time by a physician. Regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures is to be ascertained under the ordinary conditions of life while not hospitalized. For the reasons expressed below, the Board finds that an initial rating higher than 10 percent is not warranted. At an October 2010 VA examination, completed approximately three months prior to his separation from service, the Veteran reported that he had a seizure disorder manifested by memory gaps. He reported staying functional with no memory of what he was doing or how he got to where he was. He indicated the length varied from one minute long to 15 to 20 minutes long. The seizures occurred by themselves and ended on their own. He reported having attacks over the past two years, but he could not say how many. He was on Lamictal for the seizures. The examiner noted that the seizures were documented by EEG. The Veteran attended a VA seizure disorders examination in August 2021 where the examiner diagnosed the Veteran with generalized non-convulsive seizures and seizure disorder. The Veteran reported that he began having seizure like activity after his TBI and that he was diagnosed with absence seizures. He reported during the absence seizures he is unaware of what is going on around him and stares blankly. Furthermore, he reported that he has had his seizures under control for several years. Continuous medication is not required for control of his seizure activity. The Veteran reported he used to take Lamictal for his seizures. The Veteran's seizure disorder has been confirmed by an electroencephalogram (EEG). The examination report reflects that his symptoms include episodes of staring and episodes of abnormalities of memory, which the examiner noted are typical of absence seizures. The date of his most recent seizure activity was in 2016. The Veteran was noted to have 0 to 1 minor seizures in the past 6 months. The Veteran was found not to have any major seizures, minor psychomotor seizures, or major psychomotor seizures. The examiner noted the Veteran's seizure disorder caused no functional impact. Based on the above, the Veteran's seizure disorder has resulted in a history of minor seizures, with the last one being in 2016. There is no evidence of at least 2 minor seizures in the previous 6 months or at least 1 major seizure in the last 2 years, the criteria for a 20 percent rating. Moreover, there is no evidence of 2 or more minor seizures in any 6-month period throughout the appeal period. Thus, the medical and lay evidence of record is consistent with the current 10 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8911. As such, the criteria for a rating in excess of 10 percent for the Veteran's seizure disorder have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Left Ankle Condition The Veteran attended a VA examination in October 2010 in part for an evaluation of his left ankle condition. In the diagnosis section, the examination report reflects "[n]o pathology to render diagnosis." However, although the Veteran denied having pain at the time of the examination, the Veteran reported having weakness, stiffness, swelling, restlessness, pain, and tenderness in his left ankle. Furthermore, the record indicates the Veteran suffered multiple left ankle sprains during his service. Therefore, as it is unclear from the record whether the Veteran has a left ankle condition, an additional remand is required to afford a VA examiner the opportunity to clarify any diagnosis of the Veteran's left ankle, and if a diagnosis is not identified, then to determine if pain alone results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability); see also Wait v. Wilkie, 33 Vet. App. 8 (2020) (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). 2. PTSD 3. TBI The Veteran attended a VA examination on August 5, 2021 for an evaluation of his TBI. The examiner noted the Veteran's diagnosis of PTSD, and the examiner opined that it is not possible to determine if the Veteran's symptoms are due to PTSD or TBI "as symptoms often overlap." The examiner provided no rationale beyond stating the symptoms often overlap. The Veteran attended a separate VA examination on August 16, 2021 for an evaluation of his PTSD. The examiner noted the Veteran's diagnosis of TBI, and the examiner opined that it is not possible to differentiate what symptoms are attributable to his PTSD and which are attributable to his TBI. The examiner reasoned that the symptoms of the disorders overlap, and she stated she could not determine their individual impact. The examiner provided no additional rationale. A review of the record prior to the 2021 VA examinations illustrates that a February 2015 mental status examination showed the Veteran had fair recall, and a September 2018 VA TBI evaluation reflects that the Veteran had short term memory deficits. However, VA psychiatric records in 2018 and 2019 are silent for reports of memory issues, and the mental status examinations are silent for any memory deficits. The September 2018 VA TBI evaluation reflecting short term memory deficits when considered with the 2018 and 2019 VA psychiatric records not reflecting any memory issues indicate that, at least prior to the 2021 VA examinations, the Veteran's memory deficits may be attributed to his TBI and not his PTSD. The August 2021 VA opinions do not address this evidence. Furthermore, regarding the August 5, 2021 opinion, it is unclear from the rationale of "as symptoms often overlap" whether the VA examiner is referring to the Veteran's specific symptoms of his PTSD and TBI or the disorders in general. In addition, as neither VA examiner addressed any particulars of the Veteran's PTSD and TBI in opining that the symptoms cannot be differentiated, the Board concludes an additional VA examination is necessary to adequately adjudicate the Veteran's claims for increased ratings for PTSD and TBI in order to evaluate the evidence in the record that indicates the Veteran's symptoms may be differentiated. Upon remand, the examiner will be requested to provide a retrospective opinion as to whether the Veteran's PTSD and TBI symptoms can be differentiated at any point throughout the appeal period. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records from March 2021 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature and etiology of any left ankle condition. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of any left ankle condition or any symptoms that cause functional impairment of earning capacity? In addressing this question, the examiner is requested to consider the October 2010 VA examination report that reflects that the Veteran reported having weakness, stiffness, swelling, restlessness, pain, and tenderness in his left ankle. (b.) For any diagnosed left ankle condition or functional impairment of earning capacity, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service, to include left ankle injuries therein? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination or examinations (including via telehealth interview if an in-person examination is not feasible), to evaluate the severity of the Veteran's PTSD and TBI disabilities. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate PTSD and TBI under the criteria of the rating schedule must be conducted and the results reported in detail. The examiner(s) is asked to address the following. Identify whether any symptoms associated with the Veteran's PTSD and TBI can be attributed specifically to the Veteran's PTSD or attributed specifically to the Veteran's TBI, including at any time during the period on appeal, from January 4, 2011. In doing so, specifically address the following symptoms identified at the August 2021 VA examinations: i) Depressed mood; ii) Anxiety; iii) Suspiciousness; iv) Panic attacks that occur weekly or less; v) Chronic sleep impairment; vi) Mild memory loss, such as forgetting names, directions, or recent events; vii) Impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; viii) Disturbances of motivation and mood; ix) Difficulty in establishing and maintaining effective work and social relationships; x) Difficulty adapting to stressful circumstances, including work or a work like setting; and xi) Irritability. In answering these questions, the examiner is requested to consider the September 2018 VA TBI evaluation reflecting that the Veteran had short term memory deficits and 2018 VA psychiatric records that are silent for memory issues. The examiner(s) must fully explain the rationale for any opinion, including if the examiner is unable to differentiate the symptoms of the Veteran's PTSD and TBI at any time during the appeal period, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner(s) cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.