Citation Nr: 21072841 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-49 762 DATE: December 6, 2021 ORDER A rating higher than 30 percent for total right knee replacement from July 1, 2000 to February 25, 2010 is denied. A rating higher than 60 percent for total right knee replacement from February 26, 2010 to July 31, 2014 is denied. A rating of 60 percent for total right knee replacement from August 1, 2014 to August 24, 2020, but no greater, is granted. A rating higher than 60 percent for total right knee replacement beginning August 25, 2020 is denied. A rating higher than 60 percent for total left knee replacement from August 1, 2010 to April 30, 2012 is denied. A rating higher than 30 percent for total left knee replacement from May 1, 2012 to August 24, 2020 is denied. A rating higher than 60 percent for total left knee replacement beginning August 25, 2020 is denied. A rating higher than 20 percent for cervical spine degenerative disc disease is denied. A separate rating for left upper extremity radiculopathy is granted. A separate rating for right upper extremity radiculopathy is granted. A rating higher than 10 percent for temporomandibular joint (TMJ) dislocation from May 1, 2012 is denied. A 50 percent rating for depressive disorder not otherwise specified (NOS), but no greater, prior to November 14, 2016, is granted. A 70 percent rating for depressive disorder, but no greater, beginning November 14, 2016, is granted. FINDINGS OF FACT 1. From July 1, 2000 to February 25, 2010, residuals of the Veteran's right total knee replacement manifested by less than severe painful motion and weakness. 2. From February 26, 2010 to July 31, 2014, the Veteran was in receipt of the maximum schedular rating allowable for residuals of a total right knee replacement. 3. From August 1, 2014 to August 24, 2020, residuals of the Veteran's right total knee replacement more closely contemplate severe painful motion and weakness. 4. Beginning August 25, 2020, the Veteran was in receipt of the maximum schedular rating allowable for residuals of a total right knee replacement. 5. From August 1, 2010, the Veteran was in receipt of the maximum schedular rating allowable for residuals of a total left knee replacement. 6. From May 1, 2012 to August 24, 2020, residuals of the Veteran's left total knee replacement manifested by less than severe painful motion and weakness. 7. Beginning August 25, 2020, the Veteran was in receipt of the maximum schedular rating allowable for residuals of a total left knee replacement. 8. The Veteran's cervical spine disability had limited forward flexion to 40 degrees, and her combined range of motion of the cervical spine was 125 degrees; she did not have ankylosis of the spine, or experience incapacitating episodes of intervertebral disc syndrome totaling at least 4 weeks over a 12-month period. 9. Resolving any doubt in favor of the Veteran, the evidence establishes right upper extremity radiculopathy related to the Veteran's cervical spine disability. 10. Resolving any doubt in favor of the Veteran, the evidence establishes left upper extremity radiculopathy related to the Veteran's cervical spine disability. 11. From May 1, 2012, the Veteran's service-connected temporomandibular joint disorder manifests no worse than symptoms of painful motion on opening her mouth and chewing, lateral excursion range of motion 0-4mm, maximum unassisted vertical opening of 34mm, but no dietary restrictions. 12. Prior to November 14, 2016, the Veteran's depression is manifest in symptoms such reduced reliability and productivity, anxiety, sleep disturbances, and disturbances of mood and motivation, but not by deficiencies in most areas. 13. Beginning November 14, 2016, the Veteran's depression is manifest in symptoms contemplating deficiencies in most areas of occupational impairment, including near-continuous depression and neglect of personal appearance, hygiene, and some activities of daily living. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 30 percent for total right knee replacement from July 1, 2000 to February 26, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 2. From February 26, 2010 to July 21, 2014, a schedular rating greater than 60 percent is not available for the Veteran's total right knee replacement. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 3. The criteria for a 60 percent rating, but no greater, for total right knee replacement from August 1, 2014 to August 24, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 4. Beginning August 25, 2020, a schedular rating greater than 60 percent is not available for the Veteran's total right knee replacement. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 5. From August 1, 2010 to April 30, 2012, a schedular rating greater than 60 percent is not available for the Veteran's total right left replacement. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 6. The criteria for entitlement to a rating higher than 30 percent for total left knee replacement from May 1, 2012 to August 24, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5055. 7. From August 25, 2020, a schedular rating greater than 60 percent is not available for the Veteran's total left knee replacement. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5055. 8. The criteria for entitlement to a rating higher than 20 percent for cervical spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code 5243. 9. The criteria for entitlement to a separate rating for left upper extremity radiculopathy have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.7, 4.71a, 4.120, 4.123, 4.124a, Diagnostic Code 8510, 8610. 10. The criteria for entitlement to a separate rating for right upper extremity radiculopathy have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.7, 4.71a, 4.120, 4.123, 4.124a, Diagnostic Code 8510, 8610. 11. The criteria for entitlement to a rating higher than 10 percent for temporomandibular joint (TMJ) dislocation from May 1, 2012 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905. 12. The criteria for entitlement to a disability rating of 50 percent, but no greater, for depression have been met prior to November 14, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 13. The criteria for entitlement to a disability rating of 70 percent, but no greater, for depression have been met beginning November 14, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to June 2000. The claim of entitlement to service connection for a lumbar spine disability was granted in the September 2020 rating decision. The RO also granted an increased rating to 40 percent disabling for fibromyalgia the September 2020 rating decision, which is the highest rating available for this disability. As this constitutes a full grant of benefits sought for both claims, these issues are no longer in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The remaining claims have returned for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. A rating higher than 30 percent for total right knee replacement from July 1, 2000 to February 25, 2010. Under Diagnostic Code 5055, a 100 percent rating is warranted for a period of one year of convalescence following the implantation of the prosthetic knee for as provided for in 38 C.F.R. § 4.30. Following the one-year period of convalescence, the Veteran's knee is assigned a subsequent rating under Diagnostic Codes 5055. A minimum 30 percent rating is assigned for total replacement, and a 60 percent rating, the maximum schedular evaluation, is assigned status total knee replacement with chronic residuals consisting of severe painful motion or weakness in the knee. When there are intermediate degrees of residual weakness, pain, or limitation of motion, the Rating Schedule directs that those manifestations be rated under Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran had a total right knee replacement in February 1999 while on active duty. The minimum 30 percent rating for residuals of total right knee replacement was granted effective July 1, 2000 (the day after her separation from service). To warrant the maximum 60 percent rating between the period from July 1, 2000 to February 25, 2010, the evidence must show chronic residuals of the total right knee replacement that consisted of severe painful motion or weakness in the right knee. The May 2000 VA examination referenced a 1992 arthroscopic examination of the right knee which showed synovitis, scar tissue and a tear of the medial meniscus, as well as three other arthroscopic evaluations of the right knee, as well a total knee replacement in February 1999. The examiner noted that the Veteran recovered well after surgery, had good range of motion, and did well until she began experiencing pain several months prior to the examination. A June 2006 VA examination describes flexion to 130 degrees on the right knee and full extension bilaterally. On review of the evidence for the period under consideration, the Board finds the criteria to assign a rating higher than 30 percent for residuals of a total right knee replacement are not met. Furthermore, higher ratings under Diagnostic Codes 5256, 5261 and 5262 are not available as ankylosis has not been found, extension has not been shown to be limited to 30 degrees or more, and there is no evidence of impairment of the tibia and fibula. As such, a rating higher than 30 percent under Diagnostic Code 5055 is not warranted. 2. A rating higher than 60 percent for total right knee replacement from February 26, 2010 to July 31, 2014. The Veteran seeks a rating greater than 60 percent for the period between July 1, 2000 to February 25, 2010. The 60 percent rating currently assigned under Diagnostic Code 5055 is the maximum schedular disability rating available under this that code (excluding a 100 percent disability rating assigned for one year following implantation of prosthesis). Therefore, a higher disability rating is not warranted for the Veteran's service-connected left knee disability. In her March 2010 statement, the Veteran explained that her symptoms of right knee replacement manifested in symptoms of her knees going out when she walks. The Veteran was afforded a VA examination of the right knee in June 2010. She described symptoms of pain and swelling and stated that her right knee "occasional[ly] gives way". The Veteran further explained that the pain in her right knee is constant. The examiner documented functional limitations in kneeling, bending, going up stairs, walking, and driving long distances. She also reported flare-ups on occasion with increased pain. The flare-ups caused her knee to feel hot and swollen on occasion and increased pain. She reported attending physical therapy, which provided no relief, but that ice and elevation helped for swelling. The Veteran's right knee flexion was to 120 degrees and she had full extension. A July 2013 radiology diagnostic report did not find abnormality at the right knee arthroplasty. The Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5055 for this period, a higher rating under that code is not possible. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no higher rating available under any other provision governing the evaluation of knee disabilities. Moreover, Note (1) for this section directs that "When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed." Therefore, the claim for an increased rating in excess of 60 percent for the Veteran's total right knee replacement must be denied. 3. A rating higher than 30 percent for total right knee replacement from August 1, 2014 to August 24, 2020. A March 2014 examination report references the Veteran's "well known" complaints of unstable and painful right knee. The Veteran was described as unstable with walking, with "grossly unstable" to varus and valgus stress with her walking. The Veteran's July 2016 Statement in Support of Claim describes difficulty performing daily tasks such as shopping and housecleaning due to her right knee disability. In a November 2016 statement, the Veteran's spouse submitted a statement in support of the Veteran's claim, explaining that the Veteran's service-connected knee conditions limit her ability to walking only very short distances, and that the Veteran is unable to stand for more than a few minutes at a time. After review of the claim's file, the Board finds that the severity of the Veteran's pain and instability more closely contemplate the criteria for a 60 percent rating. This is particularly the case considering that while ratings greater than 60 percent but less than 60 percent are available under Diagnostic Codes 5256, 5261 and 5262, clinical findings (ankylosis, limited extension, impairment of tibia/fibula) to support higher ratings are not warranted. As such, the maximum 60 percent rating under Diagnostic Code 5055 is warranted for this period. 4. A rating higher than 60 percent for total right knee replacement from August 25, 2020. Examination of the Veteran's right knee in August 2020 revealed current symptoms of constant achy pain every day, which she reported as 5 to 10 on a scale of 1-10 dependent on activities and weather. The Veteran is prescribed medication for pain medication. She did not report flare-ups at the time. The Veteran has difficulty climbing stairs and walking for extended periods of time and is unable to engage in activities which require "being on knee". Pain causing functional loss was noted on examination. The right knee extension was 0 to 130, and extension is 130 to 0. The examiner noted mild localized tenderness or pain on palpation. There was no evidence of pain with weight bearing, and no objective evidence of crepitus. After repetitive use additional loss of function was described as flexion from 0 to 125 and extension was 125 to 0. Pain, fatigue, lack of endurance causes functional loss. Muscle strength testing for right flexion was 4/5 and extension was 5/5. The Veteran did not have muscle atrophy or ankylosis. The examiner did not find joint instability. Additionally, there was no evidence of shin splints, patellar dislocation, stress fracture. The 60 percent rating currently assigned under Diagnostic Code 5055 is the maximum schedular disability rating available under this that code (excluding a 100 percent disability rating assigned for one year following implantation of prosthesis). Therefore, a higher disability rating is not warranted for the Veteran's service-connected right knee disability. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no higher rating available under any other provision governing the evaluation of knee disabilities. Moreover, Note (1) for this section directs that "When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed." The Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5055, a higher rating under that Diagnostic Code is not possible. Therefore, the claim for an increased schedular rating in excess of 60 percent for the Veteran's total right knee replacement must be denied. 5. A rating higher than 60 percent for total left knee replacement from August 1, 2010 to April 30, 2012. The 60 percent rating currently assigned under Diagnostic Code 5055 is the maximum schedular disability rating available under this that code (excluding a 100 percent disability rating assigned for one year following implantation of prosthesis). Therefore, a higher disability rating is not warranted for the Veteran's service-connected left knee disability under this diagnostic code. The Veteran had a total left knee replacement in June 2009. The examiner stated that the Veteran's post-surgery total left knee replacement was going well, but her sciatica seems to have been aggravated, and the pain was unbearable. The pain interfered with the Veteran's activity level. An August 2009 VA examination describes mild discomfort of the left knee and stated that the Veteran used a cand to rise from a chair. The June 2011 VA examination describes full left knee flexion and extension. The Veteran's left knee reflex was normal. There was no muscle atrophy. The examiner also did not observe painful motion, guarding of movement, weakness, atrophy, or abnormal weightbearing. The examiner opined that the Veteran's left knee status post arthroplasty had moderate functional impact. While the examiner noted mild stability, the Board finds that instability that is no more severe than that inherent in any total knee replacement must logically already be contemplated in the rating for a total knee replacement instead of warranting a separate compensable rating for instability. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but finds that no other diagnostic code provides a basis for any higher rating. Moreover, Note (1) for this section directs that "When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed." As stated above, the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5055, a higher rating under that code is not possible. Therefore, the claim for an increased schedular rating in excess of 60 percent for the Veteran's total left knee replacement must be denied. 6. A rating higher than 30 percent for total left knee replacement from May 1, 2012 to August 24, 2020. The Veteran was assigned the minimum 30 percent rating for residuals of total left knee replacement, effective May 1, 2012. In order for the Veteran to warrant the next higher maximum 60 percent rating, the evidence must show chronic residuals of the total left knee replacement that consist of severe painful motion or weakness in the left knee. When there are intermediate degrees of residual weakness, pain, or limitation of motion, suggesting that a rating higher than 30 percent but less than 60 percent is warranted, the Rating Schedule directs that higher ratings can be awarded if manifestations contemplated by Diagnostic Codes 5256, 5261, or 5262 are present. 38 C.F.R. § 4.71a, Diagnostic Code 5055. On review of the evidence for the period under consideration, the Board finds the criteria to assign a rating higher than 30 percent for residuals of a total left knee replacement are not met. July 2013, August 2013, May 2014, and June 2014 progress notes documented full range of motion with painful motion, no tenderness, normal strength, and no instability. The Veteran's spouse explained in a November 2016 statement that the Veteran's service-connected knee conditions limit her ability to walking only very short distances, and she is unable to stand for more than a few minutes at a time. The spouse also stated that the Veteran had difficulty lifting objects, cannot bend or stoop and must rest for up to an hour after standing for only a few minutes. Id. Walking was extremely limited, and the Veteran uses a scooter that was prescribed by a doctor. Id. The Veteran's collective symptoms of her total left knee replacement does not indicate chronic residuals consisting of severe painful motion or weakness. Furthermore, higher ratings under Codes 5256, 5261 and 5262 are not available as ankylosis has not been found, extension has not been shown to be limited to 30 degrees or more, and there is no evidence of impairment of the tibia and fibula. As such, a rating higher than 30 percent under Code 5055 is not warranted. 7. A rating higher than 60 percent for total left knee replacement from August 25, 2020. Examination of the Veteran's left knee in August 2020 revealed residual pain form the Veteran's left knee replacement. The Veteran is prescribed medication for pain medication. She did not report flare-ups at the time. The Veteran has difficulty climbing stairs and walking for extended periods of time and is unable to engage in activities which require "being on knee". Pain causing functional loss was noted on examination that caused functional loss. The left knee extension was 0 to 135, and extension is 135 to 0. There was no evidence of pain with weight bearing, and no objective evidence of crepitus. After repetitive use additional loss of function was described as flexion from 0 to 125 and extension was 125 to 0. Pain, fatigue, lack of endurance causes functional loss. Muscle strength testing for right flexion was 5/5 and extension was 5/5. The Veteran did not have muscle atrophy or ankylosis. The examiner did not find joint instability. Additionally, there was no evidence of shin splints, patellar dislocation, stress fracture. The 60 percent rating currently assigned under Diagnostic Code 5055 is the maximum schedular disability rating available under this that code (excluding a 100 percent disability rating assigned for one year following implantation of prosthesis). Therefore, a higher disability rating is not warranted for the Veteran's service-connected left knee disability. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no higher rating available under any other provision governing the evaluation of knee disabilities. The Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5055, a higher rating under that code is not possible. Moreover, Note (1) for this section directs that "When an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under § 4.71a may not also be assigned for that joint, unless otherwise directed." Therefore, the claim for an increased schedular rating in excess of 60 percent for the Veteran's total left knee replacement must be denied. 8. Entitlement to a rating higher than 20 percent for cervical spine degenerative disc disease. 9. Entitlement to a separate rating of 20 percent for left upper extremity radiculopathy is granted. 10. Entitlement to a separate rating of 20 percent for right upper extremity radiculopathy is granted. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA purposes, unfavorable ankylosis means that the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. In this context, an "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Veteran's cervical spine disability is currently rated as 20 percent disabling. She seeks a higher evaluation. In the May 2000 VA examination, the Veteran described pain on rotation of her neck, as well as muscle spasms that extended through the trapezius muscles into the shoulder areas posteriorly. The examination referenced a December 1999 cervical spine MRI with normal results. X-ray of the cervical spine showed disc spaces were well maintained, and while there was questionable loss of the cervical lordotic curve, the radiologist thought that this was more likely related to the positioning of her neck on the X-ray film. The Veteran's October 2009 private treatment records reflect a diagnosis of cervical neuritis, treatment for cervical radiculitis, and treatment of epidural steroid injections due to pain. At the June 2010 VA examination, the Veteran reported pain that radiates to the back of her head to the shoulder, and reported functional limitations in turning her neck, bending and picking up things, and lifting. The examiner did not observe peripheral nerve involvement. Her cervical spine flexion was to 45 degrees and extension was to 45 degrees. An October 2012 VA examination documented degenerative disc disease of the cervical spine with residual mild limitation of motion. No functional limitation or radiculopathy was noted at that time. The Veteran did not report flare-ups. Her cervical spine flexion was to 40 degrees and extension was to 35 degrees, however the Veteran reported painful motion. The August 2020 VA examination provides the most probative evidence for this period. During the examination, the Veteran reported occasionally hearing clicking in her neck that relieves pressure. She also reported pain managed by medication. Her cervical spine forward flexion was to 45 degrees, with no additional loss after three repetitions. There was pain on examination, which caused functional loss, as well as lack of endurance and pain with extension, right lateral flexion, right lateral rotation and left lateral rotation. Pain, weakness, and fatigability or incoordination significantly limited functional ability with repeated use over time. The Veteran denied having flare-ups. There was no tenderness, guarding or muscle spasm of the cervical spine or muscle atrophy. The Veteran's reflexes were normal, and no radiculopathy is found. There was no ankylosis of the spine. X-rays were not clinically indicative. The Veteran did not have any incapacitating episodes of IVDS during the past 12 months. The Board finds no other evidence in the record, lay or medical, that supports a rating higher than 20 percent under either the General Formula or the IVDS Formula. Thus, the preponderance of evidence is against finding that the Veteran's cervical spine disability limited forward flexion to 15 degrees or less, resulted in ankylosis of the spine, or caused incapacitating episodes of IVDS totalling at least 4 weeks over a 12-month period. As such, there is no reasonable doubt to resolve in her favor. Gilbert, 1 Vet. App. at 53. A rating higher than 20 percent is denied. Paralysis of the left and right upper extremity radicular nerves. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, be rated separately, under an appropriate diagnostic code. While a 2000 VA examination did not find bilateral radiculopathy due to the Veteran's cervical disability, the examiner documented the Veteran's complaint of radiating pain in the bilateral upper extremities. A February 2007 private examiner diagnosed cervical neuritis. Subsequently, March and April 2007 private treatment records reference the Veteran's continued complaint of cervical radiculopathy. Additionally, October 2009 private treatment records documents a diagnosis of cervical neuritis. The Veteran's October 2009 Social Security Administration records document neck pain radiating into the Veteran's upper extremities to her thumbs as well as numbness. October 2009 private treatment records reflect a diagnosis of cervical neuritis, treatment for cervical radiculitis, and treatment of epidural steroid injections due to pain. A February 2010 private treatment record documents the Veteran's diagnosis of cervical radiculopathy. At the June 2010 VA examination, the examiner did not observe peripheral nerve involvement. September 2011 private treatment records also document a diagnosis of cervical radiculopathy. An October 2012 VA examination documented no functional limitation or radiculopathy at that time. At the August 2020 VA examination, no radiculopathy is found. Based on the above, it is clear that during the appeal period, especially in the earlier years, there was a clinical diagnosis of cervical radiculopathy in both upper extremities. Although the later VA-generated evidence does not document radiculopathy, the fact remains that radiculopathy is most clearly established or disproven through electromyogram (EMG) or similar nerve conduction study (NCS) testing. With the strongly favorable evidence of record through 2011, and in the absence of a negative EMG or NCS since that time, resolving reasonable doubt in the Veteran's favor, the Board finds that separate ratings for radiculopathy of the right and left upper extremities are warranted for the entire period on appeal. 11. Entitlement to a rating higher than 10 percent for temporomandibular joint (TMJ) dislocation from May 1, 2012. The Veteran's temporomandibular disorder is currently rated at 10 percent disabling under 38 C.F.R. § 4.150, Diagnostic Code 9905. Under Diagnostic Code 9905, for temporomandibular articulation with limitation of motion, a 10 percent rating is warranted for a range of lateral excursion of 0 to 4 millimeters (mm), or interincisal range of 30 to 34mm maximum unassisted vertical opening without dietary restrictions to mechanically altered food. A 20 percent rating is warranted for either of the following: interincisal range of 30 to 34mm maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods; or, interincisal range of 21 to 29mm without dietary restrictions to mechanically altered foods. 38 C.F.R. § 4.150. A Note following 38 C.F.R. § 4.150, Diagnostic Code 9905 directs that ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. An examination of the Veteran's jawbone took place on April 2020. She told the examiner that she experiences pain in the left side at least four times a month that last for one hour or more with throbbing pain described as 10/10. The Veteran did not experience pain on the left side. The Veteran did not report flare-ups. She experiences functional loss which affects the ability to chew. There was no evidence of pain with chewing mastication, but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of crepitus or clicking of joint or soft tissue of the right TMJ. Her lateral excursion was 0-4mm. Her inter-incisal range was 34mm for all range of motion testing. Thus, a rating higher than 10 percent disabling is not warranted. The criteria are met for lateral excursion range of motion from 0-4mm, which matches the currently assigned 10 percent rating. Her interincisal range was 34mm on examination; accordingly, a rating higher than 10 percent disabling on this basis would require dietary restrictions to soft and semi-solid food; such clinical findings are not established by the evidence of record. Therefore, a rating higher than 10 percent is denied. As the preponderance of the evidence weighs against a higher rating, the benefit of the doubt rule does not apply, and the claim is denied. See 38 C.F.R. § 4.3. 12. Entitlement to a 50 percent rating for depressive disorder not otherwise specified (NOS). The Veteran's depressive disorder is rated as 30 percent disabling under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. She states that a higher rating is warranted for her depression as it is worse than contemplated by the currently assigned rating. Specifically, in her October 2011 statement, she asserted that she experiences social impairment due to symptoms of depression. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran received a private psychological assessment in March 2006 due to anxiety and depression. The Veteran drove herself to the appointment, was alert and was able to provide her own history. The examiner observed that the Veteran had good attention and concentration. While the Veteran reported that her memory was affected by her conditions, the examiner documented that her recall of general information was good, and her recall for personal history was average. The examiner documented that the Veteran experienced auditory hallucinations as well as panic attacks. The Veteran arrived at the June 2010 VA examination clean, neatly groomed, and appropriately dressed. The examiner described her speech as unremarkable, attitude as cooperative, friendly, relaxed, and attentive, and affect as tearful at times. Her thought process was unremarkable, she did not experience delusions, and she understood the outcome of her behavior. The examiner noted that the Veteran experienced auditory hallucinations that were not persistent. The Veteran described experiencing depressed mood daily for the majority of the day, which she described as a 5 on a scale of 1 to 10. She also described experiencing disturbances in sleep, anxiety, and trouble eating. The Veteran did not have panic attacks, homicidal thoughts, suicidal thoughts, or obsessive/ritualistic behavior. The examiner diagnosed depressive disorder and anxiety disorder and opined that the Veteran was capable of a variety of structured, sedentary positions of employment, ideally with a flexible schedule to accommodate any intermittent motivational difficulties. He also opined that the Veteran's intermittent anxiety would likely lead to occasional decreased in work efficiency and/or intermittent episodes of inability to perform occupational tasks. The Veteran's October 2016 statement described her symptoms of insomnia due to depressive disorder. Her spouse's November 2016 statement, received on November 14, 2016, explained that the Veteran's depressive disorder manifests in severe symptoms requiring her to take medication that limit her ability to function. Specifically, the spouse indicated that the Veteran's medications impede her functioning to cook, clean, or perform daily tasks in a safe manner. The spouse also stated that he must monitor and assist the Veteran with performing activities related to her personal care to keep her clean and safe. At the May 2020 VA examination for the Veteran's depressive disorder, the Veteran reported experiencing anxiety attacks, depression, insomnia, and sleep apnea. She indicated constants feelings of depression and intermittent anxiety. The examiner documented that the Veteran's symptoms are depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran was found to be capable of managing her own affairs. When considering the evidence of record, focusing on the degree of social and occupational impairment resulting from the Veteran's documented symptomatology, the Board finds that a 50 percent rating is warranted prior to November 14, 2016, and a 70 percent rating is warranted as of that date. Prior to November 14, 2016, which is the date of the Veteran's spouse's statement, the Veteran's anxiety was described as intermittent, and she was not experiencing panic attacks. As a whole, the disability picture is most consistent with the "reduced reliability and productivity" contemplated by the 50 percent rating. To the extent that auditory hallucinations are noted in various documents relating to treatment for the Veteran's depressive disorder, the Board finds that this symptom did not manifest in a degree of social or occupational impairment such that a higher rating would be warranted. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (noting that the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level); Vazquez-Claudio, 713 F.3d at 117-18. Although the Veteran's symptoms are the "primary consideration" in assigning an evaluation under § 4.130, the determination of a particular evaluation requires a factual conclusion as to the level of occupational and social impairment. Effective November 14, 2016, the Board finds that a 70 percent rating is warranted. From that time, the Veteran's depression is documented as being near-constant, with the added burden of intermittent anxiety. (The record does not establish that the anxiety manifests in a discrete fashion from her depression, and as such, can be considered as part of the overall disability picture. Mittleider v. West, 11 Vet. App. 181 (1998).) Her spouse's statement that she requires assistance with her personal appearance and hygiene, as well as certain other activities of daily living, suggests a higher (but not total) level of social and occupational impairment, consistent with the "affecting the ability to function independently, appropriately, and effectively" contemplated by the 70 percent rating. To the extent that the Veteran asserted entitlement to a rating higher than 50 percent disabling prior to November 14, 2016, and higher than 70 percent disabling beginning that date, the Board finds that such a rating is not warranted as it is not supported by the evidence of record. Indeed, total social or occupational impairment is not reflected even when the Veteran's symptoms as a whole are considered. As the preponderance of the evidence weighs against ratings higher than those assigned by this decision, the benefit of the doubt rule does not apply, and the claim is denied. See 38 C.F.R. § 4.3. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.