Citation Nr: 21076756 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-37 698 DATE: December 27, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected temporomandibular joint disorder (TMJ) with arthritis of the temporomandibular joint for the period from March 1, 2013, to January 16, 2018, is denied. Entitlement to a 40 percent rating, but no higher, for service-connected TMJ is granted, effective January 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent for service-connected irritable bowel syndrome (IBS) is denied. Entitlement to an initial compensable rating for service-connected bilateral hearing loss (BHL) is denied. Entitlement to a 30 percent rating, but no higher, for service-connected bitemporal headaches with TMJ with arthritis is granted, effective March 1, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for service-connected TMJ scar is denied. Entitlement to an initial compensable rating for service-connected left shin scar is denied. Entitlement to an initial compensable rating for service-connected left superior iliac crest scar is denied. Entitlement to an initial 10 percent rating, but no higher, for service-connected painful scar of the left lateral knee is granted prior to January 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for service-connected painful scar of the left lateral knee is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 16, 2018, and in excess of 20 percent thereafter, for service-connected lumbosacral strain with lumbar spine degenerative disc disease with L5-S1 spondylolysis and intervertebral disc disease (IVDS) is remanded. Entitlement to a rating in excess of 10 percent prior to January 16, 2018, and in excess of 20 percent thereafter, for service-connected cervical spine with degenerative arthritis and IVDS is remanded. Entitlement to a rating in excess of 20 percent for service-connected left knee chondromalacia of the patella with DJD is remanded. Entitlement to a rating in excess of 10 percent for service-connected right ankle synovitis is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left hip strain, impairment of the thigh (limitation of adduction/abduction) is remanded. Entitlement to an initial compensable rating prior to January 16, 2018, an in excess of 10 percent thereafter, for service-connected left hip strain limitation of extension, is remanded. Entitlement to an initial compensable rating for service-connected left hip strain, limitation of flexion is remanded. Entitlement to a total disability individual unemployability (TDIU) rating for the period prior to February 16, 2014, is remanded. FINDINGS OF FACT 1. Prior to January 16, 2018, the Veteran's TMJ was not manifested by an inter-incisal range less than 21 millimeters (mm) of maximum unassisted vertical opening, nor was the Veteran ever subject to a dietary restriction to even soft foods or semi-solid foods, let alone full liquid or pureed foods. 2. From January 16, 2018, the Veteran's TMJ has manifested in flare-ups equivalent to limitation of inter-incisal range to 11 to 20 mm of maximum unassisted vertical opening, along with dietary restrictions to all mechanically altered foods; however, it was not manifested by inter-incisal range equal to or less than 10 mm. 3. The Veteran's IBS has been assigned the maximum 30 percent rating; and the Veteran's symptoms are adequately contemplated under this rating. 4. The Veteran has had no worse than Level I hearing loss in the right ear and Level I hearing loss in the left ear. 5. Resolving any reasonable doubt in favor of the Veteran, for the period from March 1, 2013, to January 15, 2018, his bitemporal headaches were equivalent to characteristic prostrating migraine attacks occurring on an average of once a month over the last several months; however, they were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 6. The Veteran's single TMJ scar is located on the left postauricular side of his head, and it has not been demonstrated to have had any of the characteristics of disfigurement or to be painful or unstable. 7. The Veteran's left shin scar does not involve the head, face, or neck; is not deep; does not affect an area exceeding at least 6 square inches (39 square centimeters); is not painful or unstable; and does not have any other disabling effects not considered under DCs 7800-7804. 8. The Veteran's left superior iliac crest scar does not involve the head, face, or neck; is not deep; does not affect an area exceeding at least 6 square inches (39 square centimeters); is not painful or unstable; and does not have any other disabling effects not considered under DCs 7800-7804. 9. Prior to January 16, 2018, the Veteran's left lateral knee scar was manifested as painful. 10. At no point during the appeal period has the Veteran's left lateral knee scar been manifested as an unstable scar, deep and nonlinear covering an area or areas of at least 6 square inches (39 sq. cm), superficial and nonlinear covering an area or areas of at least 144 square inches (929 sq. cm.), or had any disabling effects not considered under DCs 7800-7804. CONCLUSIONS OF LAW 1. For the period from March 1, 2013, to January 16, 2018, the criteria for entitlement to a rating in excess of 20 percent for TMJ have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.150, Diagnostic Code (DC) 9905. 2. For the period from January 16, 2018, the criteria for entitlement to a rating of 40 percent, but no higher, for TMJ have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.150, DC 9905. 3. The criteria for a rating in excess of 30 percent for IBS have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, DC 7319. 4. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, DC 6100. 5. For period from March 1, 2013, to January 15, 2018, the criteria for entitlement to an initial 30 percent rating, but no higher, for bitemporal headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. 6. The criteria for a compensable rating for a TMJ scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7800. 7. The criteria for a compensable rating for left shin scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7805. 8. The criteria for a compensable rating for left superior iliac crest scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7805. 9. For the period on appeal prior to January 16, 2018, the criteria for a disability rating of 10 percent, but no higher, for a painful left lateral knee scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 10. For the entire period on appeal, the criteria for a disability rating in excess 10 percent, for a left lateral knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs. The Board remanded the above claims in November 2018 for further development. In addition, claims for earlier effective dates for the grants of service connection for left hip flexion and extension, low back disorder, cervical disorder, left knee disorder, and right ankle disorder were remanded for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). An SOC was issued in July 2019. The Veteran did not perfect his appeal and these issues are considered no longer before the Board. While pending remand, the RO in a July 2021 rating decision, granted increased ratings as follows: a 30 percent rating for TMJ; a 20 percent rating for the cervical spine, a 20 percent rating for the lumbar spine, a separate noncompensable rating for left hip limitation of extension; and a separate 10 percent rating for a left knee scar. Each rating was made effective January 16, 2018. The Veteran has continued his appeals. See AB v. Brown, 6 Vet. App. 35 (1993). These increases are reflected in the issues listed below. In addition, the RO granted service connection for radiculopathy and tinnitus effective January 16, 2018. With regard to tinnitus, the Board considers this a full grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As to radiculopathy, the Veteran has yet to express disagreement with this rating or effective date therefore the Board will not currently take jurisdiction. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate DCs identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where evidence indicates that the degree of disability increased or decreased during an appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. TMJ The Veteran's disability is rated under DC 9999-9905. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the DC will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. The schedular rating criteria for dental disabilities were amended, effective September 10, 2017. See 82 Fed. Reg. 36,080 (August 3, 2017). The former criteria may be applied throughout the appeal period, but the amended criteria may be applied only as of September 10, 2017. 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 under the old criteria prior to September 10, 2017, and both the old and new rating criteria from September 10, 2017. The criteria that is more favorable will be applied. Prior to September 10, 2017, under DC 9905, temporomandibular articulation with limited motion of the range of lateral excursion of 0 to 4 mm warranted a 10 percent evaluation. Additionally, limited motion of the inter-incisal range of 31 to 40 mm warranted a 10 percent evaluation, 21 to 30 mm warranted a 20 percent evaluation, 11 to 20 mm warranted a 30 percent evaluation, and 0 to 10 mm warranted a 40 percent evaluation. A Note to this DC states that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905. Effective September 10, 2017, DC 9905 was revised. Under the new version of this regulation lateral excursion range of motion from 0 to 4mm still warrants a 10 percent rating, and inter-incisal range of: 0 to 10 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants a 50 percent rating and without dietary restrictions to mechanically altered foods warrants a 40 percent rating 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants a 40 percent rating and without dietary restrictions to mechanically altered foods warrants a 30 percent rating 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants a 40 percent rating; with dietary restrictions to soft and semi-solid foods warrants a 30 percent rating; and without dietary restrictions to mechanically altered foods warrants a 20 percent rating 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants a 30 percent rating; with dietary restrictions to soft and semi-solid foods warrants a 20 percent rating; and without dietary restrictions to mechanically altered foods warrants a 10 percent rating Notes (2) and (3) indicate that for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm; and for VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. The Veteran seeks increase ratings. As this is an initial ratings claim, the period on appeal is from the date of service connection, March 1, 2013, forward. For the period from March 1, 2013, to January 16, 2018, the Veteran is in receipt of a 20 percent rating. Thereafter, he is in receipt of a 30 percent rating. Following consideration of the record, entitlement to an initial rating in excess of 20 percent for the period prior to January 16, 2018, is denied. However, entitlement to a 40 percent rating, but no higher, is warranted from January 16, 2018, but no earlier. Turning to the record, on April 2014 VA examination the Veteran reported flares of his mouth locking up and popping constantly. Range of motion (ROM) was lateral excursion greater than 4 mm, with objective evidence of painful motion beginning at greater than 4 mm and inter-incisal range of 21 to 30 mm, with objective evidence of painful motion beginning at 21 to 30 mm. Repetitive ROM of lateral excursion could not be tested because of pain. However, inter-incisal ROM did not change. Functional loss was described as less movement than normal, incoordination (with impaired ability to execute skilled movements smoothly), and pain on movement. Pain on palpation was present bilaterally with crepitus right. Scars were present on examination, but were not painful, unstable, or greater than 39 square cm (scars length and width were 1mm by 4 cm). Arthritis was present right. Functional impact was the condition being painful with prolong talking and repeated use, resulting in the Veteran not being able to talk at times. The examiner noted pain, weakness, fatigability and/or incoordination were contributing factors with flare and repeated use of the joint overtime. Flare-ups and repeated use over time caused additional limitation "due to pain when closing" and not being able to close. The examiner indicated being unable to provide millimeters of additional ROM loss because the Veteran could not close his mouth. On January 2018 VA examination, the Veteran reported flares of the right joint with painful popping, grinding, and tightness. Functional loss and impairment were headaches and pain. Inter-incisal distance was 30-34 mm and lateral excursion was greater than 4mm. The examiner indicated that the Veteran's ROM was abnormal and contributed to functional loss as he has to blend foods to eat. Pain was noted on examination but did not result in/cause functional loss. Pain was present on mouth opening and bilateral lateral excursion. There was no evidence of pain with chewing. There was evidence of 3/10 crepitus on right opening and closing. During ROM pain was noted on examination but was deemed to not result in or cause functional loss. With repetition inter-incisal ROM decreased to 21-29 mm but lateral excursion remained unchanged. With repeated use factors causing functional loss on the left were pain, fatigue, weakness, lack of endurance, and incoordination and on the right was pain. Flare-ups and repeated use over time caused, functional loss of right pain, fatigue, weakness, lack of endurance, and incoordination, and left pain. Inter-incisal distance with flare and repeated use over time was ROM 11-20 mm and lateral excursion of 0-4mm. Additional factors contributing to disability were less and weakened movement than normal bilaterally and swelling left. The Veteran was noted to require a mechanically altered food diet, to include full liquid, puree foods, soft foods, and semi-solid foods. Scars were not found on examination. Functional impact was the Veteran not being able to work. In describing the Veteran's condition, the examiner explained that there was a 26% loss of ROM after observed repeated use on inter-incisal opening, and a 0% loss bilaterally laterally. There was additional limitation of functional ability of the joint during repeated use over time and with flare-ups of 56% on inter-incisal opening and 50 % loss on lateral excursion. Treatment medical records do not document findings worse than above. Following consideration of the record, a rating in excess of 20 percent is not warranted under DC 9999-9905 under either the old or new code. In that regard, the record is negative for a finding of inter-incisal range to 11 to 20 mm. There is also no finding that the Veteran's ROM equated to 11 to 20 mm with flare/repeated use over time. To the contrary, the examiner noted that the Veteran suffered from difficulty closing his mouth not opening it. Such is required for a 30 percent rating under the old code. As to the new code, although the Veteran had inter-incisal range to 21 to 30 mm, the record is negative for a finding of dietary restrictions of either soft and semi-solid foods or full liquid and pureed foods. Such findings are required for a 30 percent rating under the new code. Therefore, a rating in excess of 20 percent is not warranted for the period prior to January 16, 2018. However, a rating in excess of 30 percent is warranted for the period from January 16, 2018, under the new code only. As to the old code, the record is negative for a finding of limited motion of the inter-incisal range of 0 to 10 mm, therefore a 40 percent rating is not possible. As to the new code, the 2018 VA examination confirms the Veteran's disability requires dietary restrictions to all mechanically altered foods, to include full liquid and pureed foods. In addition, the examiner confirmed that inter-incisal range with flare and repetitive use over time equated to 11 to 20 mm and 21 to 29 mm, respectively. Combined, such is equivalent to a 40 percent rating under the new code. That said, at no time during the appellate period has the Veteran demonstrated an inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening. As stated above, the Veteran's disability was at worst limited to 11 to 20 mm even with flare. As such, the Board finds that his overall disability does not more nearly approximate a 50 percent rating. Based on the foregoing, the Board concludes that the criteria for rating in excess of 30 percent for the period prior to January 16, 2018, is denied. However, a 40 percent rating, but no higher, is warranted for the period from January 16, 2018. B. IBS DC 7319 is assigned for irritable colon syndrome. Under this DC, a noncompensable rating is assigned for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress; a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress; and a maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. The Veteran seeks increase rating. As this is a claim for increase rating, the relevant period on appeal is from one year prior to the date of claim, here March 1, 2013. He has been in receipt of a 30 percent rating from March 1, 2013, prior to March 1, 2013, he is in receipt of a 10 percent rating. 38 C.F.R. § 4.114, DC 7319. Entitlement to increase rating is not warranted. Turning to the record, on April 2014 VA examination, the Veteran reported experiencing abdominal cramping, diarrhea, and bloating. Continuous medication was not required to control his IBS. Surgical treatment was also not used. Signs and symptoms of his IBS were frequent diarrhea, alternating diarrhea and constipation, and abdominal distension. The Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of IBS. Examination was negative for tumors and neoplasms, weight loss and malnutrition, complications, or other general health effects. The examiner opined that the Veteran's IBS did not have a functional impact. On January 2018 VA examination, the Veteran reported that his condition had worsened a bit, but that he was not taking medication as it caused side effects. The examiner confirmed continuous medication was not required to treat the Veteran's condition and he did not have surgery for the condition. Symptoms and signs attributable to his condition were alternating diarrhea and constipation (one day or two of diarrhea followed by 3 days of no bowel movement); abdominal distension (tense bloating); and nausea (occasional mild nausea without vomiting). Frequent episodes of bowel disturbance with abdominal distress were confirmed. Episodes of exacerbations and/or attacks of the intestinal condition were described as severe discomfort, migratory cramps, diarrhea (watery without blood), and bloating. Exacerbations and/or attacks in the past 12 months were 7 or more. The Veteran did not have neoplasms or metastases, weight loss, malnutrition, serious complications, or other general health effects attributable to his IBS. Functional impact was the Veteran having to suddenly interrupt any work-related interactions or tasks to use the restroom during attacks of diarrhea. As a result, he would have to have ready access to the bathroom. Treatment medical records prior to 2014 VA examination are negative for symptomatology. Moreover, records from 2014 VA examination forward negative for symptomatology worse than documented above. Throughout the period on appeal, the Veteran's service-connected IBS has been evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.114, DC 7319. This is the highest rating under DC 7319. Given that he is already in receipt of the maximum schedular rating for IBS, there is no basis to award a higher rating under DC 7319. Moreover, as the Veteran has not argued the presence of an exceptional circumstance or unaccounted symptom, application of an extraschedular evaluation under 38 C.F.R. § 3.321 is not appropriate. The claim is denied. C. Bilateral Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran seeks an increase rating. As this is an initial ratings claim, the period on appeal is from the date of service connection, March 1, 2013, forward. The Veteran is in receipt of a noncompensable rating. Entitlement to an increase rating is not warranted. Turning to the record, an April 2014 VA examination reveals that the Veteran reported difficulty with communication. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 50 50 37.5 96% LEFT 25 35 60 55 43.75 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2018 VA examination reveals that the Veteran again reported difficulty with communication. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 45 50 36.26 100 % LEFT 20 30 55 55 40 100 % Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Treatment medical records do not reflect worse diagnostic testing results than reflected above. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including decreased ability to communicate. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Headaches The Veteran's headaches are currently evaluated under DC 8100. This diagnostic code provides for a noncompensable rating with less frequent attacks; a 10 percent rating with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating with characteristic prostrating migraine attacks occurring on an average once a month over the last several months. A maximum scheduler rating of 50 percent is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating," and the courts have not undertaken to define "prostrating" for purposes of DC 8100. See Fenderson, 12 Vet. App. at 119. According to Merriam Webster's Collegiate Dictionary, 11th Edition (2007), p. 999, "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in Dorland's Illustrated Medical Dictionary, 31st Edition, p. 1554, in which "prostration" is defined as "extreme exhaustion or powerlessness." The Court has determined "productive of severe economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). The term "severe economic inadaptability" remains undefined, but nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. At 445-46. The Veteran seeks an increase rating. As this is an initial ratings claim, the period on appeal is from the date of service connection, March 1, 2013, forward. That said, as discussed in the Board's previous decision, the Veteran is currently in receipt of a 50 percent rating, under DC 8100, from January 16, 2018, forward. What remains at issue is the matter of entitlement to an initial compensable rating for the period from March 1, 2013, to January 16, 2018. Following consideration of the record, the Board finds that an initial 30 percent rating, and no higher is warranted. Turning to the record, November 2013 Treatment medical records document the Veterans reports of daily headaches. Headaches were described as 8/10 in severity, with worsening bilateral pain which was aching, dull, and throbbing. In December 2013, headaches were described as chronic and uncontrolled. He reported 14 days of flare-ups in the previous month. In January 2014, the Veteran reported headaches everyday so severe as to wake him from sleep. He also reported associated dizziness. In April 2014, the Veteran underwent VA examination. He reported the use of Hydrocodone and Flexeril to treat his symptomatology. He also reported experiencing headaches but provided no specification as to the amount or severity. The only symptom listed on examination was dull headache pain. The examiner indicated the Veteran did not suffer from nausea, vomiting, sensitivity to light or sound, or changes in vision or sensation because of his headaches. The examiner indicated that headache pain typically lasted less than a day and was bilateral. The Veteran was not deemed to have characteristic prostrating and prolonged attacks of either migraine or non-migraine headaches. Functional impact was limited concentration. Thereafter, in May and November 2014 treatment medical records document the Veteran's report of throbbing headache pain, and headaches that can last between 6 hours and all day as well as short severe headaches lasting only 20 minutes. February and March 2015 records document on-going chronic headache pain 7/10 in severity. October and November 2015 records document headaches were constant and associated with nausea, dizziness, and photophobia. January 2016 treatment records document chronic headaches associated with nausea and photophobia. May 2016 headaches were 10/10 in severity present daily with dizziness. May and November 2017 headaches were 7/10 in severity. During a January 2018 examination, the Veteran reported worsening in his condition with more frequent headaches in the temporal areas, mostly on the left, occurring daily and waxing and waning much of the day. Hydrocodone use was continued. Pain was listed as constant and localized to one side of the head. Examination was negative for non-headache symptoms. Headache durations were described as more than 2 days with typical headache pain on the left side. The examiner confirmed he had prostrating and prolonged attacks of migraine/non-migraine headache pain which were productive of severe economic inadaptability. The Veteran also had characteristic prostrating attacks of migraine/non-migraine headache pain more than once per month. Functional impact was his condition making it difficult to work, but not resulting in an inability to work. After resolving reasonable doubt in the Veteran's favor, the evidence tends to show that his headaches more nearly approximated the criteria for a 30 percent rating, but no higher, for the period from March 1, 2013, to January 16, 2018. From the outset, the Board acknowledges the 2014 VA examiner did not opine that the Veteran suffers from prolonged and prostrating attacks. Nevertheless, the combined record, when juxtaposed against the medical definition of prostration, supports symptomatology severe enough to warrant increase rating. In that regard, in considering the medical definition for "prostration," the Veteran's constant headaches alone would realistically have to cause some level of extreme exhaustion, powerlessness, or some impairment or incapacitation. As stated, these headaches were constant, and typically ranged from 7/10 in severity, if not higher. Furthermore, his non-headache symptoms, of nausea, dizziness, and sensitivity to light, would also realistically result in some form of powerlessness and impairment which only further diminished his functionality. His combined symptoms would have, at a minimum, resulted in limitation of activities that require focus and concentration. Given the above, resolving reasonable doubt in the Veteran's favor, the Board determines that his headache symptoms more nearly approximate the frequency and severity contemplated by the 30 percent rating criteria, during the period from March 1, 2013, to January 16, 2018. However, the Veteran's symptoms do not rise to the level of severity encompassed by the 50 percent rating. Although frequent, his attacks were not deemed completely prostrating and prolonged. To that end, as indicated above, his headaches typically lasted 6 hours to one day. His headaches also were never described by physicians as, or noted to result in, symptomatology equivalent to prolonged "complete physical or mental exhaustion" or "extreme exhaustion or powerlessness." Additionally, the examination of record explicitly opined against his headaches being productive of severe economic inadaptability, and there is no evidence of record that the headaches could produce severe economic inadaptability during the period in question. That said, the functional impact from the Veteran's headaches is adequately contemplated and compensated by the 30 percent rating now assigned. In sum, the Board determines that a rating of 30 percent, and no higher, is warranted for the Veteran's bitemporal headaches for the period from March 1, 2013, to January 16, 2018. E. Scars The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. DC 7800 was unaffected by the amendment and provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. See 38 C.F.R. § 4.118, DC 7800. Under DC 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. Prior to August 13, 2018, Under DC 7801 a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear with an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). See 38 C.F.R. § 4.118, DC 7801. From August 13, 2018, DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." Prior to August 13, 2018, Under DC 7802 a 10 percent rating is assigned for scars not of the head, face or neck, which are superficial and nonlinear and cover an area of 144 square inches or greater. See 38 C.F.R. § 4.118, DC 7802. From August 13, 2018, DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. DCs 7804 and 7805 were unaffected by the revisions and read as follows: Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. See 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. See 38 C.F.R. § 4.118, DC 7805. The Veteran seeks increased ratings. As these are initial ratings claims, the period on appeal is from the date of service connection, March 1, 2013, forward. He is rated noncompensable for his TMJ, shin, and iliac crest scars from March 1, 2013 forward. His TMJ scar is rated under DC 7800 and his shin and iliac crest scars are rated under DC 7805. In addition, the Veteran is in receipt of a noncompensable rating for his left knee scar under DC 7804 from March 1, 2013, to January 16, 2018, and a 10 percent rating thereafter for a painful left knee scar under DC 7804. Following consideration of the record, entitlement to a compensable rating is not warranted for his scars of the TMJ, left shin, or left superior iliac crest. A 10 percent rating is warranted for the Veteran's left knee scar for period from March 1, 2013, to January 16, 2018. However, a rating in excess of 10 percent is not warranted for any portion of the period on appeal for the Veteran's left knee scar. For clarity, the Board notes that, in accordance with the November 2018 remand directives, the RO verified that photographs of the Veteran's TMJ scar were not taken in conjunction with his April 2014 VA examination. Thus, confirming the claims file is complete. Thereafter, the RO, as directed, offered the Veteran an opportunity for reexamination of his scars to ascertain the current severity of his conditions. However, the Veteran declined and instead requested that his claims be decided based upon the evidence of record. Adjudication may proceed, as substantial compliance with Board directives has been achieved. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the record, an April 2014 TMJ examination revealed a scar with dimensions of 1 mm by 4 mm. The scar was negative for instability, pain, or a total area of all related scars greater than 39 square cm. Additionally April 2014 VA hip and knee examinations revealed scars, but were negative for instability, pain, or a total area of all related scars being greater than 39 square cm. On January 2018 VA scar examination, diagnosis was scar, due to surgery of the temporomandibular joint; scar, left iliac crest, status post bone graft harvest; scar, status post left knee meniscectomy and collateral ligaments repair; and scar, status post repair of ruptured patellar tendon, left knee. The Veteran's knee scar was noted as painful with burning soreness with touch or mild electric like dysesthesias to touch, or pressure on the scar. There was no frequent loss of covering of the skin. Lower extremity scars were described as 1) located vertically and anteriorly from the upper knee to the upper third shin and 2) located lateral to the left patella. Dimensions were scar 1) 14.5 x 0.7 cm and scar 2) 7.0 x 2.0 cm. Both scars were considered superficial and non-linear. The Veteran's anterior trunk scar was described as located on the lateral lower abdomen just anterior to the iliac crest. The scar was superficial and non-linear with dimensions 6 x 0.3 cm. Approximation of the combined total area affecting the left lower extremity was 24.15 cm. Approximation of the combined total area affecting the anterior trunk was 1.8 cm. The Veteran's TMJ scar was not painful or unstable with frequent loss of covering of skin over the scar. The scar was described as located on the left postauricular with dimensions of 4.0 x 0.1 cm. Examination was negative for abnormal pigmentation or texture, tenderness to palpation, instability upon inspection, gross distortion or asymmetry of facial features, or visile or palpable tissue loss, elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The examiner specified that there was pain/dysesthesia to touch/pressure of the scar on the lateral left knee status post meniscectomy and collateral ligament repair. There was no limitation of function or functional impact associated with the Veteran's scars. Medical records throughout the appeal are negative for TMJ, shin, or iliac crest scar symptomatology greater than documented on VA examinations. A compensable rating is not warranted for the Veteran's shin, TMJ, or iliac crest scars for any portion of the period on appeal. As to the shin/iliac crest scars, per the record, his lower extremity scars were never identified as painful or unstable, having underlying soft tissue damage, or having an area of at least 6 square inches, let alone an area, or areas of 144 square inches. As such an increase rating under 7805, which redirects to DCs 7800-7804 is not warranted. As to the TMJ scar, a compensable rating under DC 7800 is not warranted as the Veteran does not have at least one characteristic of disfigurement. The Board has considered other codes. 7801 and 7802 are not applicable to scars of the head/neck/face. Moreover, as the record is negative for indication that the Veteran's TMJ scar was painful or unstable a compensable rating under 7804 is not warranted. The Veteran has not provided information to the contrary. Given the record, increase rating for these conditions is not warranted. That said a 10 percent rating is warranted for a painful left knee scar prior to January 16, 2018. From the outset, the Board acknowledges that the 2014 VA examination was negative for report of painful scar. However, treatment medical records and lay assertions contemporaneous to that period reflect symptomatology to the contrary. To that end, treatment records before the period on appeal reflect the Veteran was prescribed lidocaine cream to treat his knee scar pain. Thereafter, January 2014 Social Security Administration (SSA) records document the Veteran's reports of not only experiencing on-going knee scar pain but continuing to rely on lidocaine cream to treat his condition. Additionally, September 2014 VA treatment records, prepared after VA examination, document the Veteran continuing to experience hypersensitivity of the area surrounding his scar. Of note, the sensitivity was so severe that physicians prescribed a regimen of rubbing the skin every hour to try to desensitize the area and alternating between using hot and cold packs 2-3 times per day. Affording the Veteran, the benefit of the doubt, a 10 percent rating, for painful scar, is warranted for the period from March 1, 2013, to January 16, 2018. Nevertheless, a rating in excess of 10 percent is not warranted for any portion of the period on appeal. Per the record, the Veteran has a single painful scar, under DC 7804 a higher rating requires at least 3 painful scars. Additionally, a higher rating is not achievable under a different code as the Veteran's left knee lower extremity scar has never been identified unstable, having underlying soft tissue damage, or having an area of even, at least, 6 square inches. DCs 7800-7805. Thus, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating for the Veteran's shin, TMJ, and iliac scars for any portion of the period on appeal. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply and the claims must be denied. See 38 U.S.C. § 5107(b); see also, e.g., Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001). However, a 10 percent rating, is warranted for the Veteran's left knee scar for the period from March 1, 2013, to January 16, 2018. A rating in excess of 10 percent is not warranted for the Veteran's left knee scar for any portion of the period on appeal. Id. REASONS FOR REMAND 1. Increased Ratings The most recent VA examinations to address the current nature and severity of the Veteran's lumbosacral spine disability, cervical spine disability, left knee disability, right ankle synovitis, and left hip disability occurred in January 2018. A remand is necessary to obtain new VA examinations. Treatment medical records post VA examination document that he has repeatedly fallen and now relies upon a scooter for ambulation. As at the time of previous examinations, the Veteran noted assistive devices of braces, crutches, and cane, but not a wheelchair, this evidence is suggestive of worsening. In addition, records post VA examination document, the Veteran suffered repeated falls. One fall, which occurred because his left knee "[went] out," resulted in increased sharp pain in the knees and spine thereafter. As knee instability and falls were not documented on 2018 VA knee examination such also suggests worsening. Finally, treatment medical records document neck and spine pain described as "severe" and impairing the Veteran's ability to sleep. Such severe pain, with associated impairment, was not discussed on previous examination. The combined above information indicates worsening in the Veteran's VA disabilities. As a result, a remand is warranted to ascertain the current severity of his disabilities. That said, a remand is warranted as the Veteran's 2018 VA ankle, neck, spine, knee, and hip examinations were not compliant with the provisions of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In brief, the examiner indicated being unable to opine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, without resorting to mere speculation. As rationale, the examiner stated there was no objective evidence with which to render an opinion as to whether the condition worsens with repeated use. This rationale is inadequate. In Sharp, the Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion consistent with DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. In the instant case, no such development/elicitation or consideration was conducted. Therefore, a remand is necessary to obtain a new examination that considers all the Veteran's reported symptoms, including those that occur after prolonged use. On remand all outstanding treatment records should be obtained and associated with the record. 2. TDIU During the pendency of the appeal, the issue of TDIU, was raised in a VA Form 21-894. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The claim was predicated, at least in part, on the Veteran's disabilities on appeal. As the claim for TDIU was filed while the claims for increase rating were pending, the Board considers the period on appeal for TDIU to mirror that of his claims for increase. As a result, the period on appeal for TDIU, is from one year prior to the Veteran's original March 1, 2013, date of claim for increase rating. That said, a TDIU rating was awarded effective February 16, 2014, the day the Veteran reported last working full time. As this effective date does not represent the full period on appeal, the Board must still address entitlement to TDIU for the period prior to February 16, 2014. In the instant case, development is required prior to adjudication to clarify the dates, nature, and gainfulness of the Veteran's employment during the appeal period. In the instant case, although the Veteran reported working full time until February 16, 2014, he also reported becoming too disabled to work prior to this period. Importantly, treatment records from this period contain conflicting information which strongly suggests he became unemployed earlier than 2014. Additionally, SSA records appear to contain information that conflicts with the Veteran's TDIU submissions as to dates of employment, employers, and payment. The above warrants a remand for clarification. In remanding the claim, the Board notes that notwithstanding the Veteran's reports of working full time, the question remains as to whether his employment was substantially gainful or instead marginal, such that TDIU could be awarded, for the period prior to February 16, 2014. 38 C.F.R. § 4.16(a). Given the above, a remand is warranted to allow the Veteran and his former employer(s) to clarify the extent of his employment during the period on appeal. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records. 2. Contact the Veteran and request that he supply the requisite information pertaining to his employment history, educational and vocational attainment, and any other factors having a bearing on his entitlement to TDIU for the period prior to February 16, 2014, issue. 3. Thereafter, send copies of VA Form 21-4192 to any previous employers identified by the Veteran. 4. Thereafter, schedule the Veteran for appropriate examinations to determine the current nature and severity of her neck, spine, hip, and knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a.) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The results of range of motion testing must be explicitly listed for active and passive motion, in weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c.) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (d.) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, readjudicate the issues on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.