Citation Nr: 21073046 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-10 831 DATE: December 7, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to August 9, 2017, for degenerative disc disease thoracolumbar spine is denied. Entitlement to a disability rating in excess of 20 percent from August 9, 2017, to May 3, 2021, for degenerative disc disease thoracolumbar spine is denied. Entitlement to a disability rating in excess of 40 percent from May 3, 2021, for degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine, (previously rated as degenerative disc disease thoracolumbar spine) is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right eye preoperative cataracts is remanded. Entitlement to a separate compensable disability rating prior to January 23, 2018, and in excess of 10 percent thereafter, for temporomandibular joint (TMJ) dysfunction is remanded. Entitlement to service connection for chronic chest pain is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for a bilateral elbow disability is remanded. FINDINGS OF FACT 1. Prior to August 9, 2017, the Veteran's degenerative disc disease thoracolumbar spine did not manifest as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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. 2. From August 9, 2017, to May 3, 2021, the Veteran's degenerative disc disease thoracolumbar spine did not manifest as forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 3. From May 3, 2021, forward the Veteran's degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine did not manifest as unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent prior to August 9, 2017, for degenerative disc disease thoracolumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5243. 2. The criteria for entitlement to a disability rating in excess of 20 percent from August 9, 2017, to May 3, 2021, for degenerative disc disease thoracolumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for entitlement to a disability rating in excess of 40 percent from May 3, 2021, forward for degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to May 1991 and from November 2000 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision. The above issues were most recently remanded by the Board in February 2021. The Board notes that while on remand, an August 2021 rating decision granted service connection for right eye preoperative cataracts secondary to service-connected right eye associated with facial herpes with xerosis cutis, seborrheic and actinic keratosis, effective October 2011. Additionally, a May 2021 rating decision assigned a 40 percent disability rating for the Veteran's degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine, effective May 3, 2021. Increased Disability Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38C.F.R. § Part IV. 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under §4.40). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The rating schedule provides for the evaluation of the musculoskeletal system, in which degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. The rating schedule also provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243). See 38C.F.R. §4.71a. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38C.F.R. § 4.25. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is 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. See id. These criteria are applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. In this regard, the criteria "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as a condition in which the entire thoracolumbar spine is fixed in flexion or extension. Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. 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). As noted above, disabilities affecting the spine may also be rated on the basis of incapacitating episodes, depending upon which method, incapacitation or limitation of motion, results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS code), a 10 percent rating is warranted if the total duration is at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted if the total duration is at least 2 weeks but less than 4 weeks during the past 12 months, a 40 percent rating is warranted if the total duration is at least 4 weeks but less than 6 weeks during the past 12 months, a 60 percent rating is warranted if the total duration is at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a (Diagnostic Code 5243); see also Note (1) in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (defining an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Of note, the application of Diagnostic Codes 5242 and 5243 were revised as follows: Diagnostic Code 5242, which contemplates degenerative arthritis, now includes degenerative disc disease, and Diagnostic Code 5243, which contemplates Intervertebral Disc Syndrome (IVDS), is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim for an increased disability rating under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim for an increased disability rating. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a disability rating in excess of 10 percent prior to August 9, 2017, for degenerative disc disease thoracolumbar spine is denied. For the time period prior to August 9, 2017, the Veteran's degenerative disc disease thoracolumbar spine has been rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 5003-5243, which pertains to arthritis, degenerative (hypertrophic or osteoarthritis) and intervertebral disc syndrome. 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. 38 C.F.R. § 4.27. To evaluate the Veteran's low back disability during this time period, he was afforded a January 2012 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report indicates that the Veteran has a diagnosis of degenerative disc disease, lumbar spine. Concerning the Veteran's medical history, he reported current lower back pain that he rates as 8-9/10 on a scale of 1 to 10 but can still function. He currently utilizes Capsaicin cream, Celecoxib, and a heat wrap to alleviate acute pain and formerly received Percocet and Flexeril. He is able to walk on uneven surfaces and avoids lifting and reaching as those movements trigger flare-ups. The January 2012 VA examination report states that on initial range of motion, the Veteran had flexion to 90 degrees or greater with painful motion beginning at 90 degrees or greater; extension to 30 degrees or greater with painful motion at 30 degrees or greater; right and left lateral flexion at 30 degrees or greater with pain at 30 degrees or greater at right lateral flexion and no objective evidence of painful motion at left lateral flexion; right and left lateral rotation at 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. He has functional loss on repetitive-use testing described as pain on movement and interference with sitting, standing and/or weight-bearing. The January 2012 VA examination report states that the Veteran has tenderness on palpation of paralumbar areas. The Veteran has normal muscle strength on bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He does not have guarding or muscle spasm. He does not have muscle atrophy. He has normal reflexes, and the sensory examination was normal. The straight leg raising test was normal. He does not have any radicular pain or any other signs or symptoms due to radiculopathy. He does not have any other neurologic abnormalities or findings. The January 2012 VA examination report indicates that the Veteran has IVDS, but that he has not had any incapacitating episodes over the past 12 months. He does not use an assistive device as a normal mode of locomotion. Imaging studies show that the Veteran has degenerative disease. Concerning functional impairment, the Veteran's low back disability impairs lifting activities, reaching, and necessitates a paced walking speed and limits his standing to avoid flare-ups. Generally, the Veteran's VA treatment records describe the severity of his low back disability. The VA treatment records show that the Veteran complained of low back pain, occasional numbness, stiffness, spasm, and radiating symptoms to his bilateral lower extremities. He received physical therapy for his low back disability in 2012. His VA treatment records predominantly noted that he had normal range of motion and he denied low back pain. He utilizes a Lidocaine patch for pain and received pain injections. An April 4, 2012 VA Physical Medicine Rehab Consult states that the Veteran has flexion to 40 degrees with pain, extension to 10 degrees with pain, right lateral rotation to 90 degrees, left lateral rotation to 90 degrees, right lateral flexion to 45 degrees, and left lateral flexion to 45 degrees. A May 18, 2012 VA Physical Therapy Notes provides that the Veteran has flexion to 50 degrees with pain, extension to 15 degrees with pain, right lateral rotation to 90 degrees, left lateral rotation to 90 degrees, right lateral flexion to 45 degrees, and left lateral flexion to 45 degrees. A January 2016 VA Orthopedic Musculoskeletal Exam Consult states that the Veteran has been diagnosed with some degenerative joint disease and is receiving conservative management including Viscosupplementation and corticosteroid injections. He has low back pain with some radiating symptoms to his posterior thighs. With consideration of the factors of pain and functional loss as described above, the Board finds that a disability rating in excess of 10 percent for the Veteran's degenerative disc disease thoracolumbar spine is not warranted prior to August 9, 2017. 38 C.F.R. §§ 4.40, 4.45; 4.59; 4.71a, Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. At no point did the Veteran have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges the April and May 2012 treatment records showing flexion to 40 degrees and to 50 degrees, respectively, but the records do not indicate that a goniometer was used. Consequently, the Board is unable to conclude that for this period, the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or combined range of motion of the thoracolumbar spine not greater than 120 degrees. Because the Veteran reported experiencing flare-ups that are caused by lifting and reaching, there is no basis for a finding that flare-ups cause a reduced range of motion on flexion, extension, bilateral lateral flexion, and bilateral lateral rotation necessary to satisfy a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran has also been diagnosed with IVDS. To assign a disability rating under this formula, there must be incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). For this time period, there is no showing that the Veteran had incapacitating episodes of IVDS. In sum, the preponderance of the evidence demonstrates that a disability rating in excess of 10 percent for the Veteran's degenerative disc disease thoracolumbar spine is not warranted prior to August 9, 2017. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating in excess of that assigned is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to a disability rating in excess of 20 percent prior to May 3, 2021, for degenerative disc disease thoracolumbar spine is denied. Prior to May 3, 2021, the Veteran's degenerative disc disease thoracolumbar spine was evaluated as 20 percent disabling under Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. Again, the rating schedule also provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243). See 38C.F.R. §4.71a. To evaluate the Veteran's low back disability, he was afforded an August 2017 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report indicates that the Veteran has degenerative disc disease of the thoracolumbar spine. Concerning the Veteran's medical history, he described lower back pain that prevents him from participating in activities and sleep. His low back disability is managed with pain medications, a muscle relaxant, and physical therapy. His current symptoms are described as intermittent throbbing and aching pain at the lower back that is worse at night, and severe pain that can be greater than 10 on a scale of 1 to 10. He described intermittent flare-ups that occur once every 2 to 3 months per year, that are 10 out of 10 in severity, and subside after taking prescribed medication. He did not report functional loss or impairment. The August 2017 examination report states that the Veteran has initial range of motion of flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. Range of motion does not contribute to a functional loss. Pain was noted on all planes of motion without functional loss. He has pain with weight-bearing. The Veteran did not have additional loss of function or range of motion on repetitive-use testing. Passive range of motion testing was not performed as it was not feasible to complete in a safe and reasonable manner. Non-weight-bearing testing was not applicable as the Veteran does not have objective evidence of pain when the spine is in a non-weight-bearing position. Opposing joint testing is not applicable because the spine does not have an opposing joint. The August 2017 examination report provides that the Veteran has guarding and muscle spasm of the thoracolumbar spine that does not result in abnormal gait or spine contour. Muscle strength testing and a reflex examination were normal, and the Veteran did not have muscle atrophy. Straight leg raising test was positive and the Veteran had mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in his bilateral lower extremities. The Veteran's sciatic nerve is involved, and the severity of his radiculopathy was described as mild. The August 2017 examination report demonstrates that the Veteran does not have ankylosis of the spine. He does not have IVDS. He does not use an assistive device as a normal mode of locomotion. Arthritis is documented on imaging studies. His thoracolumbar spine disability does not impact his ability to work according to the examination report. The Veteran's VA treatment records during this time period indicate that he complained of chronic low back pain that is aggravated by lifting. He treated his low back with stretching, heat/cold, a Lidocaine patch, and pain injections. He engaged in physical therapy in 2019. In particular, an April 2019 VA Physical Therapy Discharge Note states that the Veteran has constant low back pain with flare-ups. His flare-ups can begin with bending, his symptoms usually last 2 to 4 weeks and subside on their own. He has radiating symptoms down into both legs, that stops at his knees, but occasionally has numbness into both feet. Concerning functional impairment, he has increased difficulty getting out of bed in the morning and is occasionally concerned with walking due to the possibility of injury. He also has increased difficulty and pain with getting in and out of his car, ascending and descending stairs, walking greater than one quarter mile, and standing for longer than 10 minutes. His pain is decreased with ibuprofen, Celebrex, rest, and leaning forward. With consideration of the factors of pain and functional loss as described above, the Board finds that a disability rating in excess of 20 percent for the Veteran's degenerative disc disease thoracolumbar spine is not warranted prior to May 3, 2021. 38 C.F.R. §§ 4.40, 4.45; 4.59; 4.71a, Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. At no point did the Veteran have unfavorable ankylosis of the entire thoracolumbar spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Because the Veteran reported experiencing flare-ups while bending but there is no evidence of any associated additional loss of range of motion and did not have additional loss of function or range of motion on repetitive-use testing, there is no basis for a finding that flare-ups cause forward flexion of the thoracolumbar spine 30 degrees or less, necessary to satisfy a disability rating in excess of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The August 2017 examination report notes that the Veteran does not have IVDS. Thus, for this time period, there is no showing that a disability rating is warranted under Diagnostic Code 5243 for IVDS. See 38 C.F.R. § 4.71a. In sum, the preponderance of the evidence demonstrates that a disability rating in excess of 20 percent for the Veteran's degenerative disc disease thoracolumbar spine is not warranted prior to May 3, 2021. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating in excess of that assigned is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Regarding neurological impairment, a September 2017 rating decision granted service connection for left and right lower extremity, sciatic nerve and assigned 10 percent disability ratings under Diagnostic Code 8520, effective August 9, 2017the date of the above examination. There is no lay or medical evidence of record showing that the Veteran has any other neurological abnormality associated with his low back disability. 3. Entitlement to a disability rating in excess of 40 percent from May 3, 2021, thereafter for degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine, (previously rated as degenerative disc disease thoracolumbar spine) is denied. From May 3, 2021, thereafter, the Veteran's degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine has been rated as 40 percent disabling under Diagnostic Code 5242-5243, which pertains to degenerative arthritis of the spine and intervertebral disc syndrome. The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. To evaluate the Veteran's low back disability, he was afforded a May 2021 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has degenerative arthritis, IVDS, lumbar radiculopathy of the lower extremities, bilateral, and lumbar disc, bulging with radiculopathy. His current symptoms are described as pain, muscle spasms, difficulty walking, and shooting pains down his legs. For treatment, he takes Celebrex, Methocarbamol, Lidocaine patches, Voltaren, and stretches. He reported flare-ups as an inability to mow his lawn and difficulty putting on pants, socks, or shoes. The May 2021 examination report states that the Veteran has flare-ups as occurring several times per month with more severe flare-ups happening a few times per year. His flare-ups can last from one week to 6 weeks and are described as pain, shooting pain, and leg weakness. His flare-ups occur as a result of weather changes, stepping down, rolling over, and bending. His medications and stretching alleviate his flare-up issues. His flare-ups cause functional impairment as inability to engage in activities, put on pants, stand up straight, or walk. The May 2021 examination report indicates that on initial range of motion testing, the Veteran had flexion to 50 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. His range of motion contributes to functional loss as he has difficulty on flexion and thus has trouble putting on pants, socks, and shoes. He had pain on all planes of motion. Passive range of motion was performed with the same range of motion as initial range of motion testing. There is evidence of pain on active motion and passive motion that causes difficulty with activities that require flexion and prohibits yard work and physical activities such as playing with his grandchildren, basketball, and driving his truck. There was no evidence of crepitus. There was objective evidence of tenderness on palpation at the mid-line extending to the right side of his back and posterior right hip that is moderate and directly related to the claimed disability. The May 2021 examination report states that the Veteran was able to perform repetitive use testing with at least three repetitions. There was additional loss of range of motion as the Veteran had flexion to 45 degrees, extension to 25 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. On repeated use over time, the May 2021 examination report states that the Veteran has pain and weakness that significantly limit functional ability with repeated use over time. The examination report estimates the range of motion immediately after repeated use over time as flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Repetitive use will induce a flare-up that decreases his range of motion per the examination report. On flare-ups, the May 2021 examination report states that the Veteran has pain and weakness that significantly limit functional ability with repeated use over time. The examination report estimates the range of motion during a flare-up as flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The Veteran is almost in tears during a flare-up according to the examination report. The May 2021 examination report states that the Veteran has tenderness to touch without abnormal gait, muscle spasm that results in abnormal gait as a flare-up causes difficulty standing straight due to a spasm. Additional factors contributing to his disability are interference with sitting and standing as prolonged sitting or standing causes pain and disturbance of locomotion as he cannot stand straight or move his legs. The Veteran had 4/5 active movement against some resistance for right side hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and 5/5 normal strength on great toe extension. He had 5/5 normal strength on left side hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He does not have muscle atrophy. On sensory examination, he had decreased sensation on right and left foot/toes (L5). The straight leg raising test was normal. He has moderate right lower extremity intermittent pain, mild left lower extremity intermittent pain, moderate right lower extremity paresthesias and/or dysesthesias, mild left lower extremity paresthesias and/or dysesthesias, moderate bilateral lower extremity numbness. His sciatic nerve is involved. The May 2021 examination report demonstrates that there is no ankylosis of the spine. He has IVDS but has not had any episodes of acute signs and symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician. He does not use an assistive device as a normal mode of locomotion. A February 2019 MRI of his lumbar spine showed multi-level degenerative changes, moderate to severe neuroforaminal narrowing left L4-L5 with extraforaminal left sided disc contacting the L4 nerve root, generalized disc bulge contacts the extraforaminal portion of L2 at the left L2-L3 level, and moderate neuroforaminal stenosis right L2-L3 and L3-L4. He has functional impairment from radiculopathy, IVDS, degenerative changes, and bulging discs that is described as increased pain, foot numbness, and shooting pain down legs, which causes difficulty standing, sitting, and walking for prolonged periods of time. The Veteran's VA treatment records demonstrate that he complained of back pain and spasm that are aggravated by bending or rolling and relieved with Lidocaine patches and Celebrex. With consideration of the factors of pain and functional loss as described above, the Board finds that a disability rating in excess of 40 percent for the Veteran's degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine is not warranted from May 3, 2021, thereafter. 38 C.F.R. §§ 4.40, 4.45; 4.59; 4.71a, Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. At no point did the Veteran have unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Moreover, the preponderance of the evidence shows that his back disability is not productive of functional equivalent of ankylosis during flare-ups. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran has also been diagnosed with IVDS. For this time period, there is no showing that the Veteran has had incapacitating episodes of IVDS. See 38 C.F.R. § 4.71a In sum, the preponderance of the evidence demonstrates that a disability rating in excess of 40 percent for the Veteran's degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome, thoracolumbar spine is not warranted from May 3, 2021, thereafter. Therefore, the benefit-of-the-doubt rule does not apply, and a disability rating in excess of that assigned is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Unfortunately, another remand is required for the below issues. While the Board sincerely regrets the delay, such development is necessary to aid the Board in making an informed decision and will help ensure that the Veteran's claims are afforded every consideration. 1. Entitlement to an initial disability rating in excess of 10 percent for right eye preoperative cataracts is remanded. The Board notes that the Veteran's right eye preoperative cataracts is evaluated under Diagnostic Code 6027-6000. 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 assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran's right eye preoperative cataracts is rated as analogous to cataract of any type (Diagnostic Code 6027) under the criteria for choroidopathy, including uveitis, iritis, cyclitis, and choroiditis (Diagnostic Code 6000). 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. If there is no replacement lens (aphakia), both the former and revised criteria instruct to evaluate based on aphakia, which is Diagnostic Code 6029. Under Diagnostic Code 6029, both the former and revised criteria instruct to evaluate based on visual impairment, and elevate the resulting level of visual impairment one step. The minimum rating for bilateral or unilateral involvement is 30 percent. The Board finds that a new VA examination is warranted to assess the current nature and severity of the Veteran's right eye preoperative cataracts. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). An August 2021 VA Surgery Note states that the Veteran had cataract surgery. Therefore, considering the Veteran's last examination occurred prior to his surgery in July 2021 and the evidence that his disability picture has changed, the Board finds that the current evidence of record does not adequately reveal the present state of his right eye preoperative cataracts. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Further, based on the evidence of record, it is unclear whether the Veteran now has a replacement lens. Therefore, it is unclear whether his disability should be evaluated the General Rating Formula for Diseases of the Eye, visual impairment, or under Diagnostic Code 6029 is appropriate. 2. Entitlement to service connection for chronic chest pain is remanded. The Board's February 2021 remand directed the AOJ to obtain outstanding records scanned into VistA Imaging regarding his chronic chest condition. In particular, the records were described as electrocardiogram (EKG) results noted in an April 24, 2013 VA cardiovascular evaluation; EKG results were noted in a January 20, 2015 VA EKG results note; an EKG showing occasional PSVE and PVCS noted in a February 12, 2015 VA cardiology consult, and EKG results noted in a March 23, 2016 VA cardiovascular evaluation. It does not appear that this information is included in the VA treatment records currently associated with the Veteran's electronic VA file. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to his claim on appeal. A remand is required to allow VA to obtain these records and associate them with the Veteran's electronic VA file in a way which makes them reviewable by the AOJ and the Board. 3. Entitlement to a separate compensable disability rating prior to January 23, 2018, and in excess of 10 percent thereafter, for TMJ dysfunction is remanded. In February 2021, the Board remanded the Veteran's claim for an increased rating, in part, so that he could be afforded an additional VA examination to determine the current severity of his TMJ dysfunction, to include his reported spasms and its potential impact on his functional ability. The Board found the January 2018 Temporomandibular Disorders (TMDs) Disability Benefits Questionnaire to be inadequate as a result. On remand, the Veteran's claims folder demonstrates that on August 25, 2021, he cancelled the scheduled contract examination and requested that VA conduct the examination. He was informed that VA may schedule an additional contract examination and he accepted. In the August 2021 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) determined that the Veteran failed to appear for this scheduled examination and that he failed to provide a justifiable reason or explanation (i.e., the required good cause) for his failure to report. See 38 C.F.R. § 3.655. The AOJ consequently readjudicated the claim based on the existing evidence of record, and continued to deny a higher disability rating for the Veteran's TMJ dysfunction, specifically noting his failure to appear for the scheduled examination. See 38 C.F.R. § 3.655(b); see also Turk v. Peake, 21 Vet. App. 565 (2008). In the instant case, the record does not demonstrate that the Veteran was informed that his claim would be readjudicated based on the existing evidence of record should he fail to attend the examination. On the contrary, the evidence indicates that the Veteran would be afforded an additional opportunity to attend an examination. Thus, another examination must be scheduled. Such an examination is particularly important because, as noted by the Board in its previous remand, the January 2018 examination report is inadequate and thus not sufficient to allow the Board to decide this claim. 38 C.F.R. § 4.40; see Palczewski, 21 Vet. App. at 181-82; citing Caluza, 7 Vet. App. at 505-06. 4. Entitlement to service connection for a bilateral ankle disability is remanded. 5. Entitlement to service connection for a bilateral elbow disability is remanded. Lastly, the Veteran was scheduled for examinations to determine the nature and etiology of his bilateral ankle and elbow disabilities pursuant to the Board's February 2021 remand. The Veteran's claims folder demonstrates that on August 25, 2021, he cancelled the scheduled contract examinations and requested that VA conduct the examinations. He was informed that VA may schedule an additional contract examination and he accepted. In the August 2021 SSOC, the AOJ determined that the Veteran failed to appear for this scheduled examination and that he failed to provide a justifiable reason or explanation (i.e., the required good cause) for his failure to report. See 38 C.F.R. § 3.655. The AOJ consequently readjudicated the claims based on the existing evidence of record, and denied service connection. Again, the record does not demonstrate that the Veteran was informed that his claims would be readjudicated based on the existing evidence of record should he fail to attend the examinations. In contrast, the evidence indicates that the Veteran would be afforded an additional opportunity to attend examinations. Therefore, additional examinations must be scheduled to determine the nature and etiology of the Veteran's bilateral ankle and elbow disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2021 to the present. *In completing the above, the AOJ must ensure that all VA EKG studies, data sheets, or relevant diagnostic studies currently located in VistA Imaging are associated with the electronic VA file in a way that the records are reviewable by the AOJ and the Board.* 2. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right eye preoperative cataracts. The examiner must review the Veteran's claims folder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must: (a.) Indicate whether the Veteran has a right eye postoperative cataract; (b.) If so, determine whether there is a replacement intraocular lens; (c.) Determine whether there is aphakia or dislocation of the crystalline lens; (d.) Determine whether the Veteran's decrease in visual acuity or other visual impairment, if present, is attributable to a postoperative cataract. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TMJ dysfunction. The examiner must review the Veteran's claims folder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should identify all symptoms and pathology associated with the Veteran's service-connected TMJ dysfunction, to include any jaw spasms, locking, and/or "ghost sensations" and the functional effects of such symptoms, if any. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 4. Schedule the Veteran for a VA examination for his bilateral ankle disability. The examiner must review the Veteran's claims folder. The examiner is asked to provide a response to the following: (a.) Whether the Veteran's bilateral ankle disability is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral ankle disability is attributed to a known diagnosis. (c.) If the Veteran's bilateral ankle disability cannot be attributed to a known diagnosis, the clinician must opine whether it is at least as likely as not (50 percent probability or greater) that his bilateral ankle disability is a manifestation of an undiagnosed illness, or that his bilateral ankle disability is a manifestation of a chronic multisymptom illness, i.e., a diagnosed illness without conclusive pathology or etiology characterized by overlapping symptoms and signs with features that are out of proportion to the physical findings and inconsistent demonstration of laboratory abnormalities, considering any objective medical "signs" of disability, as well as any other, non-medical indicators that are capable of independent verification. (d.) If the Veteran's bilateral ankle disability is a manifestation of an undiagnosed illness or a manifestation of a chronic multisymptom illness, the examiner must opine whether it is at least as not (50 percent probability or greater) that such became manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 5. Schedule the Veteran for a VA examination for his bilateral elbow disability. The examiner must review the Veteran's claims folder. The examiner is asked to provide a response to the following: (a.) Whether the Veteran's bilateral elbow disability is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral elbow disability is attributed to a known diagnosis. (c.) If the Veteran's bilateral elbow disability cannot be attributed to a known diagnosis, the clinician must opine whether it is at least as likely as not (50 percent probability or greater) that his bilateral elbow disability is a manifestation of an undiagnosed illness, or that his bilateral elbow disability is a manifestation of a chronic multisymptom illness, i.e., a diagnosed illness without conclusive pathology or etiology characterized by overlapping symptoms and signs with features that are out of proportion to the physical findings and inconsistent demonstration of laboratory abnormalities, considering any objective medical "signs" of disability, as well as any other, non-medical indicators that are capable of independent verification. (d.) If the Veteran's bilateral elbow disability is a manifestation of an undiagnosed illness or a manifestation of a chronic multisymptom illness, the examiner must opine whether it is at least as not (50 percent probability or greater) that such became manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.