Citation Nr: 21072249 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-00 253 DATE: December 2, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent for right shoulder strain, residual fracture, right humerus, is denied. Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with degenerative changes and spondylitis is denied. Entitlement to a compensable evaluation, for the period prior to September 17, 2019, and in excess of 20 percent thereafter, for residuals of a fracture of the right tibia and fibula is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) for the period prior to August 28, 2013, is remanded. FINDINGS OF FACT 1. The Veteran is right-handed. 2. At no point during the period on appeal was the Veteran's right shoulder limited in range of motion to midway between the side and shoulder or less. 3. The Veteran did not have shoulder instability, dislocation, labral pathology, residuals of recurrent dislocation of the glenohumeral joint, loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, suspected clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition, and there was no malunion of the humerus with moderate or marked deformity. 4. The Veteran's lumbosacral strain with degenerative changes and spondylitis was not shown to have been manifested by forward flexion of less than 30 degrees or favorable ankylosis of the entire thoracolumbar spine; or intervertebral disc syndrome. 5. During the period on appeal prior to September 17, 2019, the Veteran's residuals of a fracture of the tibia and fibula did not manifest malunion or nonunion of the tibia and fibula. 6. During the period beginning September 17, 2019, the Veteran's residuals of a fracture of the tibia and fibula did not manifest more than a moderate impairment of the right knee and there was no nonunion of the tibia and fibula. 7. The Veteran's residuals of a fracture of the tibia and fibula did not manifest shin splints or nonunion of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right shoulder strain, residual fracture, right humerus, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5201, 5202. 2. The criteria for a rating in excess of 20 percent for lumbosacral strain with degenerative changes and spondylitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5242. 3. The criteria for a compensable rating, for the period prior to September 17, 2019, and in excess of 20 percent thereafter, for residuals of a fracture of the tibia and fibula, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to July 1977. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing has been associated with the claims file. The claims were previously before the Board in November 2019 when they were remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal exertion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an initial evaluation in excess of 20 percent for right shoulder strain, residual fracture, right humerus. The Veteran seeks a higher evaluation for his right shoulder disability. He contends that the range of motion of his right shoulder is reduced, that he has pain, and that the shoulder disability impacts his ability to sleep. Specifically, the Veteran indicates that his shoulder pain causes difficulty getting comfortable to sleep. The Veteran reported that he was right-handed. See Hearing Transcript, February 2019. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5202-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. Here, the hyphenated Diagnostic Code indicates that the Veteran's disability is rated, by analogy, under the criteria for limitation of motion of the arm. Under the previous version of Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Under the previous version of Diagnostic Code 5202, malunion of the humerus with moderate deformity warrants a 20 percent rating for both the major and minor extremity. Malunion of the humerus with marked deformity warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Recurrent dislocation of the humerus at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for both the major and minor extremity. Recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. Fibrous union of the humerus warrants a 40 percent rating in the minor extremity and a 50 percent rating in the major extremity. Nonunion of the humerus (false fail joint) warrants a 50 percent rating in the minor extremity and a 60 percent rating in the major extremity. Loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating for the minor extremity and a maximum 80 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Under the revised version of Diagnostic Code 5201, limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. Under the amended version of Diagnostic Code 5202, limitation of motion may be shown by flexion and/or abduction and to clarify the degrees of range of motion that relate to movement at the shoulder level. Now, recurrent dislocation of humerus at scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) warrants a 20 percent rating for both the major and minor extremity. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. In a November 2017 rating decision during the period on appeal, the effective date for the evaluation of the Veteran's right shoulder disability was changed to July 30, 1977, Therefore, the period on appeal begins July 1977. Upon examination in December 1978 the Veteran was noted to have no right arm complaints. On VA examination in March 1981, the diagnosis was residuals of healed fracture of the right humerus, right shoulder strain. The Veteran reported experiencing pain and aching of the right shoulder and upper arm. The disability had an effect on lifting, working overhead and certain movements of the right shoulder aggravated the right shoulder. Physical examination showed fine crepitation felt within the soft tissue about the right shoulder. There was no gross deformity of the right shoulder noted. He had full abduction and forward elevation of the right shoulder caused discomfort. The report of a May 2014 VA examination included the diagnosis of right shoulder strain. The Veteran had episodic shoulder pain characterized as 2 to 8 out of 10 pain. In 2014 there was increased shoulder pain to daily 2 to 8 out of 10 pain. Shoulder pain was aggravated by lifting, carrying, and twisting. He reported limited ability to use the right arm especially if the arm was raised above the head. The Veteran had flare-ups of increased pain twice a month with no loss of function during and after the flares. Initial range of motion was 90 degrees of flexion and abduction with objective evidence of pain at 80 degrees. There was no change in flexion or abduction range with repetitive use testing. There was no localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon. Muscle strength was normal and tests for rotator cuff conditions were negative. Tests for instability, dislocation, and labral pathology were negative. The Veteran did not have an acromioclavicular (AC) joint condition or any other impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. There was no additional functional impairment with repetitive use and pain, weakness, fatiguability, and incoordination did not limit functional ability during flare-ups or with repeated use of the shoulder over a period of time. The October 2017 VA examination noted the Veteran was right-handed and diagnosed right shoulder strain. The Veteran did not report flare-ups of the shoulder or arm. He did not report any functional loss or functional impairment. The initial range of motion was flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was pain on abduction but it did not result in or cause functional loss. There was no evidence of pain with weight bearing, localized tenderness or pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with no functional loss or range of motion loss. Pain, weakness, fatigability or incoordination did not significant limit functional ability with repeated use over time. There were no flare-ups. Muscle strength testing was reduced with abduction that was entirely due to the claimed condition. There was suspected rotator cuff condition but all examinations were negative. There was no instability, dislocation, or labral pathology. There were no clavicle, scapula, AC joint, or sternoclavicular joint conditions. There were no conditions or impairments of the humerus. On VA examination in February 2020, the Veteran was unable to lift his arm completely in abduction or flexion. He did not report flare-ups of the shoulder or arm. He did not report having any functional loss or functional impairment of the joint or extremity. Initial range of motion was 0 to 180 degrees of flexion, 0 to 110 degrees of abduction, and 0 to 90 degrees of external and internal rotation. The Veteran was unable to reach over his head with his dominant hand. There was pain on examination with flexion, abduction, and external and internal rotation. There was no evidence of pain with weight bearing or evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of crepitus. Observed repetitive use did not result in additional functional loss or range of motion after three repetitions. There was no pain, weakness, fatigability or incoordination that significantly limited functional ability with repeated use over a period of time. Muscle strength testing was normal and there was no ankylosis. Examination for rotator cuff conditions was negative with the Hawkin's Impingement Test and Empty Can Test. The External Rotation/Infraspinatus Strength Test and Lift-off Subscapularis Test were positive. There was no shoulder instability, dislocation, or labral pathology. There were no clavicle, scapula, AC joint or sternoclavicular joint conditions. However, the Veteran was noted to have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The humerus condition affected range of motion of the shoulder and was described as unable to completely abduct shoulder. Functional impact was an inability to lift objects over head with right arm. On VA examination in May 2021, the diagnosis was right shoulder strain with residual fracture of the right humerus. The Veteran reported flare-ups of the shoulder and/or arm that were weekly and lasted 1 to 2 days. The characteristic was pain and was precipitated by sleeping on the right side. The flare-ups were alleviated with rest and the severity was moderate. The Veteran reported functional loss or impairment of not being able to raise his arm over his head. Active initial range of motion was 121 degrees of flexion, 114 degrees of abduction, and 90 degrees of internal and external rotation. There was pain with flexion and abduction. Passive initial range of motion was the same as active range of motion. There was evidence of pain with active and passive range of motion. There was no pain with weight-bearing and non-weight-bearing. There was objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. Observed repetitive use did not show any additional loss of function or range of motion after three repetitions. Repeated use over time was not examined but there was no evidence suggesting pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. There was no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare-ups. There was no atrophy or ankylosis. Rotator cuff condition testing was negative for Empty Can and Lift-of Subscapularis tests. However, Hawkin's Impingement Test and External rotation/infraspinatus strength test were unable to be done. A rotator cuff condition was not suspected. Crank apprehension and relocation test were unable to be performed. There was no shoulder instability, dislocation, or labral pathology. There were no current residuals of recurrent dislocation of the glenohumeral joint. There was no clavicle, scapula, AC joint, sternoclavicular joint condition or other impairment. The examiner found that the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The examiner noted that the disability would impact the Veteran's ability to work. The optimal work environment would not require prolonged lifting, carrying, or moving items. In an addendum dated in June 2021, the examiner identified that the Veteran reported pain with movement during flare ups but no further decrease in range of motion of the right shoulder. On examination, pain with movement was noted on both active and passive range of motion testing. The examiner stated that it was not thought that there would be additional loss of function during flare-ups. The examiner indicated that Veteran reported that he could not raise his arm overhead after repeated use over time. On examination, flexion was limited to 121 degrees and abduction was limited to 114 degrees, which did not change with observed repetition testing. The limitation of range of motion observed on initial range of motion testing would be sufficient to limit raising the arm overhead, so the Veteran did not report any loss of function with repetitive use that was not present on initial range of motion testing. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right shoulder disability. The evidence of record shows that the Veteran is right-handed. The Board acknowledges his lay reports of symptoms and that there was functional loss due to reduced movement and pain. The Board further acknowledges notations that the Veteran was unable to raise his arm above his head, some crepitation felt, and problems with lifting, carrying, and twisting. However, even considering the Veteran's lay reports of symptoms and noted functional loss, including the degree of additional limitation reflected by the statements that the Veteran could not raise his arm overhead after repeated use, would not result in symptoms more nearly approximating malunion of the humerus with marked deformity of the major joint, recurrent dislocation of the humerus at scapulohumeral joint with frequent episodes and guarding of all movements of the major joint, fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. At no point during the period on appeal was the Veteran's right shoulder limited in range of motion to midway between the side and shoulder or less. The criteria for an increased rating, under either the old or new rating criteria, are not met or more closely approximated at any time during the appeal period. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Although a VA examiner in February 2020 found, generally, loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus, the examiner did not discuss with specificity the Veteran's disability. A subsequent VA examination in May 2021 further discussed the Veteran's disability and found that the Veteran did not have shoulder instability, dislocation, labral pathology, or residuals of recurrent dislocation of the glenohumeral joint. The examiner further found that there was no suspected clavicle, scapula, AC joint or sternoclavicular joint condition. The examiner found that the Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The Board acknowledges that the Veteran's statements indicate that his shoulder disability causes sleep disturbance, a symptom not explicitly contemplated by the schedular rating criteria pertaining to the shoulder. However, the shoulder disability was reported by the Veteran to cause pain and discomfort which caused the difficulty with sleeping. He is not diagnosed with a separate sleep disorder, nor does he assert that he is. The Board notes that pain is contemplated by the rating orthopedic rating criteria. The preponderance of the evidence is against the appeal for a rating in excess of 20 percent for right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with degenerative changes and spondylitis. The Veteran seeks a higher evaluation for his back disability. The Veteran's spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. As noted above, changes were made to the criteria for rating musculoskeletal disabilities, effective February 7, 2021. However, changes under 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Diagnostic Code 5243 and all other intervertebral disc disabilities under 5242. As such, Diagnostic Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010); Diagnostic Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021, regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The report of a May 2014 VA examination noted a diagnosed of lumbosacral strain. The Veteran's history was noted to indicate episodic back pains of 2 to 8 out of 10 pain. He had increased back pains to daily of 2 to 8 out of 10 pain in 2014. The back pain was aggravated by turning, bending, and twisting. He reported flares twice a month with increased back pains. He claimed difficulty in carrying and lifting objects. There was no sciatic radiculopathy and no intervertebral disc syndrome. Upon examination, initial range of motion was 70 degrees of forward flexion with objective evidence of pain at 60 degrees. After repetitive use testing the Veteran had forward flexion of 70 degrees. The Veteran did not have additional limitation of range of motion, functional loss, or functional impairment following repetitive use testing. There was not localized tenderness or pain to palpation for joints and/or soft tissue; muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour; muscle spasm or guarding not resulting in abnormal gait or abnormal spinal contour. Muscle strength, reflex, and sensory examination were normal. Straight leg raising was negative and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurological abnormalities and the Veteran did not have intervertebral disc syndrome. The examiner noted that there was no additional functional impairment with repetitive use and pain, weakness, fatiguability and incoordination did not limit functional ability during flare-ups or with repeated use of the thoracolumbar spine over a period of time. On VA examination in October 2017, the diagnosis was lumbosacral strain and lumbar spondylosis. Upon examination, initial range of motion was 50 degrees of forward flexion. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. The Veteran did not have additional limitation of range of motion, functional loss, or functional impairment following repetitive use testing. There were no flare-ups. There was no guarding or muscle spasm. Muscle strength testing, reflex examination and sensory examination were normal. Straight leg raising testing was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no IVDS. At the hearing before the undersigned in February 2019 the Veteran did not report back treatment at the VA. He indicated that he saw a doctor for his "spirits." In a January 2020 treatment note the Veteran was noted to have back pain with intermittent flares and a brace was ordered in September 2019. On VA examination in February 2020, the diagnosis was lumbar strain and spondylosis of the lumbar spine. The Veteran reported episodes of low back pain. Pain was confined to the low back and he denied pain shooting down his legs. He did not report flare-ups. The Veteran had functional impairment/loss described as difficulty bending, getting up and down, and cannot touch the floor. Upon examination, initial range of motion was 50 degrees of forward flexion, with pain. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. Observed repetitive use did not show additional functional or range of motion loss. On repeated use over time pain was noted to significantly limit functional ability. However, the estimated ranges of motion were the same. There were no flare-ups. There was no guarding or muscle spasm. Muscle strength was normal throughout with the exception of right knee extension which was 4 out of 5. Reflex and sensory examinations were normal. Straight leg raising test was negative. There was no radiculopathy and no other neurological abnormalities. There was no IVDS. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbosacral strain with degenerative changes and spondylitis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, including difficulty in carrying and lifting objects, difficulty bending, getting up and down, and the Veteran cannot touch the floor. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the reports of the Veteran would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In addition, the Veteran does not have IVDS. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board acknowledges that there is a single notation of reduced right knee extension muscle strength; however, there is no diagnosis or finding of radiculopathy. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain with degenerative changes and spondylitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a compensable evaluation, for the period prior to September 17, 2019, and in excess of 20 percent thereafter, for residuals of a fracture of the right tibia and fibula. The Veteran seeks a higher evaluation for his disability. The Veteran contends that he has aches and pains in the leg. See Hearing Transcript, February 2019. The Veteran's right tibia and fibula disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Under the version of Diagnostic Code 5262 in effect prior to the February 2021 regulation changes, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The amended Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. For malunion of the tibia and fibula, evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. A 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace. In a November 2017 rating decision, the evaluation of the Veteran's right leg disability during the period from July 30, 1977, to August 27, 2013, was reconsidered based upon receipt of additional service treatment records. Therefore, the period on appeal begins in July 1977. The disability is evaluated as noncompensable from that date and 20 percent disabling from September 17, 2019. See June 2020 rating decision. Service treatment records show a notation that x-rays reveal excellent alignment of the tibia and fibula. Upon examination in December 1978 the Veteran was noted to have an old, healed fracture, middle third of the right tibia. Fracture fragments have united solidly with abundant callous formation obliterating the fracture line. The fibula appeared intact. The right leg gave the Veteran pain, swelling and numbness. He could not stand for extended periods of time. Right leg motion was normal. The right ankle motion was reduced. Upon examination in March 1981 the Veteran reported right leg swelling and pain. X-ray examination of the right leg revealed an old healed oblique fracture involving the middle third of the tibia. The fracture fragments have united solidly with satisfactory position and alignment although mild angular deformity was noted due to slight displacement. The Veteran reported experiencing pain and aching of the right lower leg and swelling at times of the right lower leg. Examination showed partial muscle atrophy of the musculature of the right upper leg as compared to the left leg. The circumference of the right thigh was six inches above the patella is one inch less than the circumference of the left thigh six inches above the patella. Presence of irregularity to palpation of the middle third of the right tibia was noted. There was a small fascial defect of the middle third of the right lower leg overlying the tibial anterior muscle. The area was tender to palpation and full dorsiflexion and plantar flexion of the right ankle-foot causes discomfort about this area of the right lower leg. Full range of motion of the right hip, knee, and ankle was possible. The report of a May 2014 examination noted the diagnosis of fractured right tibia fibula. The Veteran reported right leg pain of 2 to 9 out of 10 in 2014 that was aggravated by standing for more than 20 minutes. He had flare-ups twice a month with increased pain. There was no loss of function noted during and after flare-ups. He had 140 degrees or greater of right knee flexion. Extension ended at 0 or any degree of hyperextension. There was no objective evidence of painful motion. After repetitive use testing the Veteran's right knee had the same range of motion. There was no tenderness or pain to palpation for joint line or soft tissues of either knee. Muscle strengths and joint stability tests were normal. There was no patellar subluxation/dislocation. There were no meniscal conditions. On VA examination in October 2017, range of motion of the right knee was flexion to 140 degrees and extension to 0 degrees. There was no pain noted on examination, no pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing and there was no additional functional loss or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. Joint stability tests were normal. There was no history of recurrent effusion. There were no meniscal conditions. At the hearing before the undersigned in February 2019 the Veteran reported aches and pains in his shin. The Veteran reported that he did not trust doctors for his leg and that he self-treats. A VA treatment record, dated September 17, 2019, included the Veteran's complaint that his knees feel "real weak and can cut off his circulation." On VA examination in February 2020, the diagnosis was residuals of right tibial fibular fracture. The Veteran had a painful visible deformity. He did not have flare-ups of the knee and/or lower leg. The Veteran reported being impaired by being limited in the ability to walk long distances. Initial range of motion was 0 to 140 degrees of flexion and 140 to 0 degrees of extension. There was pain on extension. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as painful calcified lump in mid shaft of the tibia. Observed repetitive use did not show any additional functional loss or range of motion after three repetitions. Repeated use over time was not performed but pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Right knee muscle strength was 4 out of 5. There was no muscle atrophy or ankylosis. There was no history of joint instability or recurrent effusion. There was no recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. In the June 2020 rating decision that increased the rating to 20 percent, the Agency of Original Jurisdiction (AOJ) cited evidence of right knee weakness, the February 2020 VA examination finding of deformity and the September 2019 VA treatment record. The 20 percent rating was assigned for malunion of the tibia and fibula with moderate knee or ankle disability. During the period prior to September 17, 2019, the Veteran's residuals of a fracture of the right tibia and fibula do not warrant a compensable evaluation. During this time period, the Veteran's disability manifested slight disability of the knee as demonstrated by painful motion without compensable reduction in the range of motion. However, there is no indication of malunion or nonunion of the tibia and fibula. Therefore, entitlement to a compensable evaluation during the period prior to September 17, 2019, is denied. During the period beginning September 17, 2019, the Veteran's residuals of a fracture of the right tibia and fibula do not warrant an evaluation in excess of 20 percent. During this period the Veteran's disability did not manifest more than a moderate impairment of the right knee. In addition, there was no nonunion of the tibia and fibula. Therefore, entitlement to an evaluation in excess of 20 percent under the old version of the rating criteria during the period beginning September 17, 2019, is denied. The criteria for an increased rating are not met or more closely approximated under the revised regulations after September 17, 2019 (with consideration of the applicability of the February 2021 regulation change) because there is no evidence the Veteran's disability was manifest by shin splints or nonunion of the tibia and fibula. The preponderance of the evidence is against the Veteran's claim for entitlement to a compensable evaluation, for the period prior to September 17, 2019, and in excess of 20 percent thereafter, for residuals of a fracture of the right tibia and fibula. In deciding the claims, the Board has also considered the Veteran's lay statements that his disabilities were worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a TBI is remanded. The claim must be remanded again because the February 2020 VA opinion is inadequate. That examiner found that the Veteran did not have any residuals of a TBI, but rationale is cursory. The examiner noted that the Veteran's history of being struck by a car is in service, but discounted the Veteran's report that he lost consciousness, solely because that was not documented in the records. 2. Entitlement to a TDIU for the period prior to August 28, 2013, is remanded. In his Application for Increased Compensation Based on Unemployment (VA Form 21-8940), dated in August 2013, the Veteran reported that he was unable to work due to his head injury, leg and arm. The Veteran reported that he last worked full time in 1999; however, he stated that his disabilities impacted his ability to work beginning in March 1977 and that he became too disabled to work as of March 1977. The Veteran reported a high school level education and his employment was reported. Materials associated with a claim for Social Security Administration benefits indicate that the Veteran's prior employment was predominantly physical in nature and included washing laundry, dish washing, and roofing. During the period prior to August 2013, the Veteran was in receipt of service-connected benefits for residuals of fracture of the right tibia and fibula and right shoulder strain. However, during this period the Veteran does not meet the schedular criteria for an award of TDIU. See 38 C.F.R. § 4.16(a). VA examinations in May 2014 indicate that the Veteran's leg and shoulder disabilities do not impact his ability to work. However, the examiner does not provide any rationale for these statements. Remand is needed for a retrospective VA examination to obtain objective findings on the full extent of the Veteran's functional impairments due to his service-connected disabilities on his employment during the period prior to August 2013 taking into consideration the records regarding the Veteran's application for Social Security Administration benefits, statements in prior examinations, and the nature of the Veteran's prior employment. In addition, a decision on the remanded issue above could significantly impact a decision on the issue of entitlement to TDIU for the period prior to August 28, 2013. A remand of the claim for entitlement to TDIU for the period prior to August 28, 2013 is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2020 to the present. 2. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding the etiology of any residuals of TBI. If an examination is deemed necessary, an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) should be scheduled. Copies of all pertinent records, and a copy of the remand, must be reviewed by the examiner. Based on review of the record and any examination, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the March 1977 accident where the Veteran was struck by a car. In rendering the opinion, the examiner must comment on the Veteran's reported symptoms of memory problems and difficulty processing and retaining information and discuss whether these symptoms are attributable to the Veteran's service-connected psychiatric disability or represent symptoms of a traumatic brain injury. A complete rationale must be provided for any opinion offered. 3. Obtain a retrospective medial opinion from an appropriate clinician that specifically addresses the functional impact of the Veteran's service-connected right leg and right shoulder disabilities. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's disabilities and consider and address the records regarding the Veteran's application for Social Security Administration benefits, statements in prior examinations, and prior employment. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the claims on appeal. If the schedular criteria are not met for award of a TDIU, for the period prior to August 28, 2013, consider whether referral to VA's Director of Compensation Service for extraschedular consideration under 38C.F.R. §4.16(b) is warranted. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.