Citation Nr: 21007647 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-32 668 DATE: February 10, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. An initial evaluation in excess of 30 percent for migraine headaches is denied. A rating in excess of 10 percent for service-connected residuals of cervical decompression with degenerative joint and disc disease is denied. A rating in excess of 10 percent for service-connected herniated nucleus pulposus with degenerative joint and disc disease is denied. An initial evaluation in excess of 10 percent for service-connected traumatic brain injury is denied. REMANDED The claim for service connection for a right ankle disability is remanded. The claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The claim for an increased rating for service-connected ischemic heart disease status post myocardial infarction and stenting is remanded. FINDINGS OF FACT 1. The Veteran’s service connected prevent him from obtaining or maintaining substantially gainful employment. 2. The Veteran’s migraine headaches are not shown to have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The RO’s April 2017 rating decision, which reduced the Veteran’s rating for his service-connected cervical spine disability from 30 percent to 10 percent, effective July 1, 2017, considered the required regulatory provisions and afforded the Veteran all required due process. 4. Prior to April 1, 2017, the Veteran’s cervical spine disability was shown to have been productive of pain and some limitation of motion, not unfavorable ankylosis; incapacitating episodes having a total duration of at least 4 weeks during a 12-month period are not shown. 5. As of April 1, 2017, the Veteran’s cervical spine disability is shown to have been productive of pain, but not forward flexion of the cervical spine functionally limited to 30 degrees or less, a combined range of motion of the cervical spine functionally limited to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, incapacitating episodes having a total duration of at least 2 weeks during a 12-month period are not shown. 6. The RO’s April 2017 rating decision, which reduced the Veteran’s rating for his service-connected back disability from 40 percent to 10 percent, effective July 1, 2017, considered the required regulatory provisions and afforded the Veteran all required due process. 7. The Veteran’s herniated nucleus pulposus with degenerative joint and disc disease is shown to have been productive of complaints of pain, but not limitation of flexion to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, 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; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. 8. The Veteran’s traumatic brain injury residuals are not shown to have been productive of symptoms warranting more than a level “1” in any relevant category under Diagnostic Code (DC) 8045. CONCLUSIONS OF LAW 1. The criteria for a TIDU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. 2. The criteria for an initial evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.124a, Diagnostic Code 8100. 3. The RO’s April 2017 rating decision, which reduced the Veteran’s rating for his service-connected cervical spine disability from 30 percent to 10 percent, effective July 1, 2017, was proper; restoration of the 30 percent rating is not warranted. 38 C.F.R. § 3.655. 4. The criteria for an increased rating for service-connected cervical strain evaluated as 30 percent disabling prior to April 1, 2017, and as 10 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243. 5. The RO’s April 2017 rating decision, which reduced the Veteran’s rating for his service-connected herniated nucleus pulposus with degenerative joint and disc disease from 40 percent to 10 percent, effective July 1, 2017, was proper; restoration of the 40 percent rating is not warranted. 38 C.F.R. § 3.655. 6. The criteria for a rating in excess of 10 percent for service-connected herniated nucleus pulposus with degenerative joint and disc disease have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235, 5242, 5243. 7. The criteria for an initial evaluation in excess of 10 percent for service-connected TBI have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to August 1985 and from December 1986 to July 2007. This matter is on appeal from an August 2014 rating decision. In August 2019, the Veteran was afforded a hearing before the undersigned. In April 2020, the Board remanded these claims for additional development. TDIU The Veteran is seeking a TDIU. The Veteran’s service connected disabilities combine to at least 90 percent (regardless of the issue being remanded herein). As such, the Veteran meets the schedular rating criteria for a TDIU. The evidence shows that the Veteran has not worked since 2011, and the Social Security Administration (SSA) has found that the Veteran is unable to work on account of his service connected disabilities. The Veteran also submitted a medical opinion in January 2021 concluding that he was unable to work on account of his service connected disabilities. Accordingly, a TDIU is granted. Increased Ratings 1. Migraine headaches. With regard to the history of the disability in issue, the Veteran’s service treatment records include a Medical Evaluation Board report (MEB), dated in February 2007, which notes that his medical history includes recurrent headaches, and cervicalgia, status post a November 2005 MVA. His current diagnoses included headaches. Following service, a June 2006 private medical report notes Arnold-Chari with suboccipital headaches. In August 2014, the RO granted service connection for traumatic brain injury (TBI) with migraine headaches, evaluated as noncompensable. The Veteran appealed, seeking an initial compensable evaluation. In July 2015, the RO granted the claim to the extent that it assigned a separate 30 percent evaluation for migraine headaches with an effective date of February 23, 2012. Since this increase did not constitute a full grant of the benefit sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). During his hearing, held in August 2019, the Veteran testified that he has headaches approximately twice a month that cause severe pain, flinching, dizziness, nausea, and blurry vision, and that require him to lay down. When asked about the effect of his headaches on his ability to work, he stated, “It works on my emotions, and it’s hard for me to deal with stressful situations or problems that I can’t talk about. I used to be an aircraft safety instructor or safety inspector, and it’s very difficult for me to, you know, get my point across to coworkers when I’m stuttering.” The Veteran’s migraine headaches have been evaluated under Diagnostic Code (DC) 8100. Under DC 8100, where migraine headaches occur with characteristic prostrating attacks occurring on an average of once a month over the last several months, a 30 percent disability rating is appropriate. Id. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. Id. 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. The rating criteria do not define “severe economic inadaptability;” however, nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term “productive of economic adaptability” could be read as either “producing” or “capable of producing.” Id. at 445. The United States Court of Appeals for Veterans Claims (“Court”) has stated that given the use by Congress of the conjunctive “and” in a statute, all of the requirements must be met before funds could be allocated or authorized. See Malone v. Gober, 10 Vet. App. 539 (1997). A VA headache disability benefits questionnaire (DBQ), dated in July 2014, shows that the Veteran’s headaches were noted to have started with an MVA in 2005. He gets sharp pain on top of head that shoots down to his neck. He reported two to three headaches a week that last two to three hours, and which go away if he can take a nap. He gets nauseous and dizzy. He takes a muscle relaxer daily to try to prevent them. The examiner stated that the Veteran has characteristic prostrating attacks of migraine and non-migraine headache pain once a month. The Veteran has very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability. The impact on the Veteran’s ability to work was that during his headaches he is not capable of any of the activities of employment, either non-sedentary or sedentary. The diagnosis was migraine including migraine variants. A July 2013 decision of the Social Security Administration (SSA) determined that the Veteran was disabled as of August 2011, which is also the date he last worked. The SSA’s findings of fact and conclusions of law show that he was also noted to have six severe conditions, to include Chiari malformation causing migraine headaches. A Medically Determinable Impairments and Severity (MDI) analysis noted that his primary severe impairment diagnosis was hypertensive vascular disease, and that his secondary severe impairment diagnosis was disorders of the back, discogenic and degenerative. See, SSA exhibit 2A at page 3. A residual functional capacity assessment, dated in August 2012, notes back, right shoulder, and right knee disorders, but it does not note headaches. See SSA exhibit 2A at page 4. The SSA’s associated documentation shows that his medications included amitriptyline for muscle relaxation, and rizatriptan. VA progress notes show that in November 2015, the Veteran’s chronic headaches were noted to be stable. A VA headache DBQ, dated in June 2016, shows that the Veteran reported that he has pain that is mostly in the back of his head. He has two migraines a month, which he treats by going to bed. When he wakes up six to eight hours later, the headache is resolved. The examiner indicated that the Veteran has dizziness with his headaches. His headaches usually last less than one day, with pain on both sides of his head. The examiner found that the Veteran experienced characteristic prostrating attacks of migraine and non-migraine headache pain approximately once a month. He did not have very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability. The impact on the Veteran’s ability to work was that during a migraine the Veteran cannot participate in any of the activities of employment. The diagnosis was migraine including migraine variants. A VA TBI DBQ, dated in September 2016, notes that the Veteran describes “occasional mild headaches.” An initial evaluation in excess of 30 percent is not warranted. The May 2014 and June 2016 VA headache DBQs show that the examiners stated that the Veteran has characteristic prostrating attacks of migraine and non-migraine headache pain once a month. The June 2016 VA examiner concluded that the Veteran does not have very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability. Although the May 2014 VA examiner indicated that the Veteran has very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability, this conclusion does not appear to be consistent with the finding of one characteristic prostrating attack a month, and the examiner did not provide an explanation in support his conclusion. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The May 2014 examiner’s conclusion also does not appear to be consistent with the SSA’s basis for its finding that the Veteran was disabled. The SSA listed headaches as a severe condition, but there was no objective evidence to show time lost from work due to headaches and its analysis did not indicate that headaches were a significant cause of its disability determination. In summary, there is insufficient objective medical or other evidence to show that the Veteran’s headaches are of such frequency and severity to meet the criteria for an initial evaluation in excess of 30 percent under DC 8100. Accordingly, the preponderance of the evidence is against an evaluation in excess of 30 percent. 2. Cervical spine. The Board first notes that in August 2014, the RO denied claims for increased ratings for a cervical spine disability, and a back disability. The Veteran appealed both increased rating issues. In December 2016, the RO proposed to decrease the Veteran’s ratings for his cervical spine and back disabilities. In April 2017, the RO effectuated the proposed reductions for both of these disabilities. Given the foregoing, the increased rating issues for the cervical spine and back include the issues of whether the RO’s reductions were proper. Propriety of the reduction from 30 percent to 10 percent. For the cervical spine, the administrative history for the claims is as follows: In April 2008, the RO granted service connection for a cervical spine disability, evaluated as 10 percent disabling. In December 2009, the RO increased the Veteran’s rating for his cervical spine disability to 30 percent, with an effective date of August 1, 2009. There was no appeal to these decisions, and they became final. See 38 U.S.C. § 7105 (c). In August 2014, the RO denied a claim for an increased rating. The Veteran appealed the increased rating issue. In December 2016, the RO notified the Veteran that it had increased his rating for traumatic brain injury, and that it proposed to decrease his ratings for his cervical spine, back, and right shoulder. He was notified that the rating his cervical spine disability was proposed to be decreased from 30 percent to 10 percent, and that as result of the proposed decreases his combined evaluation would be reduced from 100 percent to 90 percent. In April 2017, the RO effectuated all of the proposed decreases, to include reducing the Veteran’s rating for his service-connected cervical spine disability from 30 percent to 10 percent, with an effective date of July 1, 2017. The initial issue is whether the RO’s reduction in the Veteran’s disability rating for his cervical spine disability was legally proper. Under 38 C.F.R. § 3.105 (e), a reduction in an evaluation of a service-connected disability only requires special adjudication if “the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made.” In this case, in December 2016, the RO correctly noted that its proposed action would result in a reduction in the Veteran’s combined rating. Therefore, the provisions at 38 C.F.R. § 3.105 were for application, and the RO complied with the provisions at 38 C.F.R. § 3.105. At the time of the RO’s April 2017 rating decision, the Veteran’s 30 percent evaluation for his cervical spine disability had been in effect for more than 5 years. The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. See 38 C.F.R. § 3.344 (c). The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five-year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period. In addition, although the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. A review of the RO’s December 2016 proposed reduction shows that the RO determined that there was sufficient evidence to establish sustained improvement in his service-connected neck (cervical spine) disability, when comparing the results of the Veteran’s examinations in 2014 and 2016, and his recent treatment records, with the results from his October 2009 examination, upon which his initial rating of 30 percent was based. The RO’s notice included discussion of the evidence of functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995). The Board finds that the RO’s reduction from 30 percent to 10 percent was proper. The Veteran’s October 2009 examination showed that he complained of stiffness, fatigue and spasms, and moderate pain. On examination, his cervical spine had flexion to 15 degrees, extension to 10 degrees, and lateral flexion to 15 degrees bilaterally, and rotation to 20 degrees, bilaterally. A cervical spine X-ray showed degenerative arthritis (DJD) and joint narrowing. The relevant diagnosis was status post cervical decompression with scar and degenerative joint disease of the cervical spine. A VA neck examination report, dated in May 2014, notes complaints of neck pain and stiffness, and “observed mild limited range of motion.” There were radiographic imaging findings of DDD (degenerative disc disease) and DJD. On examination, his cervical spine had flexion to 30 degrees, extension to 15 degrees, and lateral flexion to 25 degrees bilaterally, and rotation to 60 degrees, bilaterally. The Veteran was observed to have no difficulty dressing for examination, and to reposition a 12-pound chair. There was no muscle atrophy. A sensory examination was normal. Strength was 5/5 in the bilateral upper extremities. Reflexes were normal in the upper extremities. With regard to the impact on his ability to work, his complaints were noted, i.e., that the Veteran he stated that he could not work in an occupation requiring excessive head and neck movements which trigger pain, and that his neck is “too stiff to move a lot” especially if required to “look from side to side while keeping the rest of my body still.” The examiner stated that a review of 58 VA electronic medical records in CPRS (computerized patient record system) dating between September 2013 and April 2014 does not indicate the complaint, evaluation or treatment of a cervical spine condition nor indicates objective clinical evidence of functional loss involving the neck. The Veteran’s service-connected medical condition does not preclude his ability to perform the sedentary tasks associated with full time employment, to include but not be limited to the ability to sit, stand, walk, hold, bend, lift, carry, drive, or operate machinery, communicate, remember, follow instructions, use judgement, show insight, think abstractly, adapt to changes or stress, concentrate, interact, and communicate with coworkers and/or customers. VA progress notes include a December 2014 report which notes that a CT scan of the neck was normal, and that the bony and soft tissues were also normal. The associated CT scan report notes that there had been neck swelling. There was no apparent widening or fracture and with intact spinous processes. There was no misalignment or sign of instability. The report contains an impression of “negative.” A cervical spine impairment questionnaire was submitted by the Veteran from a private physician, K.C., M.D., dated in January 2015, that was received by VA in August 2019. The Veteran had pain on forward flexion at less than 15 degrees. Functional loss could not be assessed due to the examiner’s lack of training. The Veteran does not have ankylosis of the entire cervical spine. The Veteran does not suffer from sensory loss or reflex changes. There was muscle spasm, but not muscle atrophy, swelling, or weakness. There was no impact on his ability to walk or stand. There was no secondary radiculopathy. The Veteran has not been prescribed best rest due to a period of acute signs and symptoms as the result of intervertebral disc syndrome. The diagnosis was chronic neck pain. A VA neck examination report, dated in June 2016, notes that the Veteran complained that he has difficulty rotating the neck, and that there are no new problems. He denied flare-ups. On examination, his cervical spine had flexion to 45 degrees, extension to 45 degrees, and lateral flexion to 45 degrees bilaterally, and rotation to 80 degrees, bilaterally. There was no localized tenderness, guarding, or muscle spasm of the cervical spine. There was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no muscle atrophy. A sensory examination was normal. Strength was 5/5 in the bilateral upper extremities. Reflexes were normal in the upper extremities. There was no ankylosis, or radicular pain. There had been no episodes of acute signs and symptoms due to IVDS (intervertebral disc syndrome) that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There have been no clinic visits for his neck since the last VA examination. The diagnosis was intervertebral disc syndrome. His cervical spine (neck) condition did not impact on his ability to work. A VA shoulder and arm DBQ, dated in September 2016, shows that the Veteran reported that his activities during the day include some housework, occasional walking, and driving. In summary, the Veteran’s medical evidence shows that upon examination in June 2016, he had significantly increased ranges of motion in the cervical spine, with at least 30 degrees more flexion and 35 degrees more extension when compared with his October 2009 examination, and 15 degrees more motion in all planes when compared with his 2014 examination. Strength and sensory findings were unchanged from 2014. There was no evidence of treatment for neck symptoms since the May 2014 examination. In 2016 there was no evidence to show significantly limited functional ability with repeated use over a period of time. Unlike the 2014 VA examiner’s findings, the 2016 VA examiner concluded that the Veteran’s cervical spine (neck) condition did not impact on his ability to work. Given this evidence, the June 2016 VA examination report was sufficient to show an improvement in the Veteran’s cervical spine disability, and the RO had a reasonable basis upon which to conclude that there was sufficient evidence to establish “sustained improvement” in his service connected neck (cervical spine) disability. The evidence is sufficient to show that there was an actual change in the Veteran’s cervical spine disability, that an improvement in his disability had actually occurred, and that such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. Brown. The June 2016 VA examination report reflected this change, and it was a thorough examination, as it included his subjective history, and current findings, and the examiner’s estimation of his level of disability. Id. At his hearing, the Veteran testified that the conditions had not improved, but what is clear from the examinations is that the conditions did improve from the initial examination. Given the foregoing, the Board finds that the RO’s April 2017 reduction of the Veteran’s disability rating for his cervical spine disability from 30 percent to 10 percent was proper. Increased rating, cervical spine. With regard to the history of the disability in issue, the Veteran’s service treatment records include a February 2007 MEB which notes that he was in an MVA in November 2005 in which he was struck in the posterior aspect of his head. Initial CT (computerized tomography) studies of the cervical spine were negative. In December 2005, a cervical spine syrinx was noted in an MRI (magnetic resonance imaging) study. He received right facet block injections in March 2006, at which time he was noted to have disorders that included whiplash syndrome, axial neck pain, and cervical radiculitis. In June 2006, he underwent a suboccipital decompression and partial C-1 laminectomy with decompression of the cervical medullary junction and duraplasty. A January 2008 imaging study noted that there was no compression fracture, degenerative disc disease at the C6-7, and degenerative changes at the facet joints of the C7-T1 level bilaterally. His current diagnoses included chronic cervical pain with evidence of degenerative disc disease. In January 2014, the Veteran filed his claim for an increased rating for his cervical spine disability, which at that time was evaluated as 30 percent disabling. In this decision, the Board has determined that the RO properly reduced the rating for this disability to 10 percent effective July 1, 2017. The issue is therefore whether the criteria for a rating in excess of 30 percent are met prior to April 1, 2017, and the criteria for a rating in excess of 10 percent are met thereafter. The Veteran’s neck disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235. This diagnostic code requires that vertebral fracture or dislocation are to be rated under the “General Rating Formula for Diseases and Injuries of the Spine.” See also 38 C.F.R. § 4.71a, DC 5237 (cervical strain), and DC 5242 (degenerative arthritis of the spine). The General Rating Formula provides that a 10 percent rating is warranted for: Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 height. A 20 percent rating is warranted for: Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent evaluation is warranted where forward flexion of the cervical spine is 15 degrees or less, or where there is favorable ankylosis of the cervical spine. Id. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the “Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes,” whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 20 percent rating is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest “prescribed by a physician” and treatment by a physician. [Note 1]. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). At his hearing, held in August 2019, the Veteran testified that he has stabbing pains at the base of his neck and up and down his back that make it difficult to keep his head straight. He said that he has difficulty moving his head to the left or right, and that his head wants to droop. He has pain bending his head forward. Prior to April 1, 2017. A rating in excess of 30 percent is not warranted. The relevant evidence was discussed supra. The Veteran is not shown to have ankylosis of the cervical spine. With regard to IVDS, the June 2016 VA examiner stated that there had been no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board therefore finds that the evidence is insufficient to show that the criteria for a rating in excess of 30 percent under the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have been met. Accordingly, a rating in excess of 30 percent is not warranted prior to April 1, 2017. Consideration has been given to the Veteran’s complaints of pain and functional loss of the cervical spine. DeLuca; VAGCOPPREC 9- 98, 63 Fed. Reg. 56704 (1998). However, the Board finds that the provisions pertaining to functional loss do not apply, as the Veteran is currently in receipt of the highest evaluation possible under a limitation of motion code. Johnston v. Brown, 10 Vet. App. 80 (1997). As of April 1, 2017. A rating in excess of 10 percent is not warranted. There are no range of motion findings of record for the time period in issue, and no findings to show IVDS. Moreover, at the VA examination in June 2016, he demonstrated full forward flexion to 45 degrees, full extension, and otherwise normal range of motion. The Veteran was able to complete repetitive motion testing without additional loss of motion. There was also no muscle spasm or guarding observed. Accordingly, the Veteran is not shown to have forward flexion of the cervical spine limited to 30 degrees or less, or a combined range of motion of the cervical spine limited to 170 degrees or less. In addition, there is no evidence to show that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Given the lack of range of motion findings, there is also no basis upon which to find that a rating in excess is warranted based on functional loss. The Board therefore finds that the evidence is insufficient to show that the criteria for a rating in excess of 10 percent under the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have been met. Back disability. Propriety of the reduction from 40 percent to 10 percent. In April 2017, the RO effectuated three proposed decreases, to include reducing the Veteran’s rating for his service-connected herniated nucleus pulposus with degenerative joint and disc disease (“back disability”) from 40 percent to 10 percent, with an effective date of July 1, 2017. The initial issue is whether the RO’s reduction in the Veteran’s disability rating for his back disability was legally proper. At the time of the RO’s April 2017 rating decision, the Veteran’s 40 percent evaluation for his back disability had been in effect for more than 5 years. A review of the RO’s December 2016 proposed reduction shows that the RO determined that there was sufficient evidence to establish sustained improvement in his service connected back disability, when comparing the results of the Veteran’s examinations in 2014 and 2016, and his recent treatment records, with the results from his September 2009 examination, upon which his initial rating of 40 percent was based. The Board finds that the RO’s reduction from 40 percent to 10 percent was proper. The Veteran’s September 2009 examination showed that he complained of weakness, stiffness, fatigue, spasms, decreased motion, numbness, and moderate pain. He reported that he was incapacitated due to back symptoms for five days in June 2009. On examination, his thoracolumbar spine had flexion to 30 degrees, extension to 25 degrees, and lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees, bilaterally. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There are signs of lumbar intervertebral disc syndrome. A thoracic spine X-ray was within normal limits. A lumbar spine X-ray showed degenerative arthritis and joint narrowing. The relevant diagnosis was herniated nucleus pulposus. A VA back examination report, dated in May 2014, notes complaints of constant stiffness, and pain aggravated by excessive lifting or pushing or standing longer than 15 minutes without sitting down to rest, and by certain movements of the torso and cold weather. He denied any negative impact on his activities of daily living or sedentary occupational pursuits. He walks his former spouse’s dogs several times daily for exercise. On examination, his back had flexion to at least 90 degrees, with pain at 70 degrees, extension to 25 degrees, with pain at 25 degrees, lateral flexion to at least 30 degrees bilaterally, with pain at the extreme of motion, and rotation to at least 30 degrees, bilaterally with pain at the extreme of motion. There was no additional loss of motion following repetitive use testing. Muscle spasms and guarding were not noted. There was no muscle atrophy. A sensory examination, strength, and reflexes were all normal in the bilateral lower extremities. There was no IVDS or radiculopathy. The Veteran was observed to have no difficulty dressing or picking up and repositioning a 12-pound chair. The Veteran does not have a thoracic vertebral fracture with loss of 50 percent or more of height. An X-ray showed arthritic spurring at L3-L4, with disc height mildly narrowed at L3-L4. A review of 58 VA electronic medical records in CPRS dating from September 2013 to April 2014 does not show complaints, evaluation or treatment of a herniated nucleus pulposus condition nor does it include objective clinical evidence of functional loss involving the back. The Veteran’s back symptoms do not preclude his ability to perform the sedentary tasks associated with full time employment. The diagnosis was continued service-connected herniated nucleus pulposus condition. VA progress notes include January and February 2014 reports which note that the Veteran continued to experience chronic back pain. A September 2014 report notes that the Veteran’s gait was normal. Reflexes are 2/4 in the bilateral lower extremities. He has normal strength and tone. A VA back examination report, dated in June 2016, notes that the Veteran denied having low back pain. He complained of back stiffness. Flare-ups were not reported. On examination, his back had flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 30 degrees, bilaterally. There was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. A sensory examination was normal. Strength was 5/5 in the left lower extremity and 4/5 in the right lower extremity. Reflexes were normal in the lower extremities. There was no ankylosis, or radiculopathy in the left lower extremity. There was radiculopathy in the right lower extremity. There had been no episodes of acute signs and symptoms due to IVDS (intervertebral disc syndrome) that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There have been no clinic visits for his back since the last VA examination. The Veteran does not have a thoracic vertebral fracture with loss of 50 percent or more of height. The diagnosis was intervertebral disc syndrome. With regard to his ability to work, his back condition was not currently a source of pain. In summary, the Veteran’s medical evidence shows that upon examination in June 2016, he had significantly increased ranges of motion in the back, with 60 degrees of additional flexion when compared with his 2009 examination. He showed an additional 20 degrees of flexion in 2016 compared to his 2014 examination. Strength findings in the left lower extremity were unchanged from 2014; to the extent that the Veteran has somewhat decreased strength in his right lower extremity, service connection is in effect for right lower extremity radiculopathy, and he is being compensated for his symptoms. Sensory examination findings in 2016 were normal, and unchanged from 2014. There is evidence of complaints of back pain, but no evidence of treatment for back symptoms since the May 2014 examination, and at his 2016 VA examination, the Veteran denied having back pain. No impairment was noted on his ability to work due to his back symptoms. Given this evidence, the June 2016 VA examination report was sufficient to show an improvement in the Veteran’s back disability, and the RO had a reasonable basis upon which to conclude that there was sufficient evidence to establish “sustained improvement” in his service connected back disability. The evidence is sufficient to show that there was an actual change in the Veteran’s back disability, that an improvement in his disability had actually occurred, and that such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. Brown. The June 2016 VA examination report reflected this change, and it was a thorough examination, as it included his subjective history, and current findings, and the examiner’s estimation of his level of disability. Id. Given the foregoing, the Board finds that the RO’s April 2017 reduction of the Veteran’s disability rating for his back disability from 40 percent to 10 percent was proper. Increased rating, back. With regard to the history of the disability in issue, the Veteran’s service treatment records include a February 2007 MEB which notes that his medical history includes problems with pain in his low back since March 2003, when he fell down steps on the U.S.S. Roosevelt. He was also in an MVA in November 2005, and he was subsequently referred to orthopedic surgery when a non-displaced T-3 lamina fracture was found on CT scan. A February 2006 MRI showed disc bulges at L3-4 and L4-5. He had temporary improvement after facet block injections, but currently feels the low back pain is worsening. His current diagnoses included chronic lumbar pain with MRI evidence of degenerative disc disease. The RO has evaluated the Veteran’s back disability under DCs 5299-5243 (intervertebral disc syndrome). See 38 C.F.R. § 4.27. The Board must determine whether a higher evaluation is warranted under any applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.71a, DC 5237 and 5242, lumbosacral strain and degenerative arthritis of the spine are rated under the “General Rating Formula for Diseases and Injuries of the Spine.” The General Rating Formula provides that 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 height. An evaluation of 20 percent 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. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months. Id. A 20 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 6 weeks during the past 12 months. Id. The Board finds that a rating in excess of 10 percent is not warranted. A rating in excess of 10 percent is not appropriate without evidence of forward flexion of the thoracolumbar spine is functionally limited to 60 degrees or less, or evidence of the combined range of motion of the thoracolumbar spine is functionally limited to 120 degrees or less. The Veteran’s ranges of motion as found in his 2014 and 2016 VA examinations were discussed supra. This evidence does not show that the criteria for a rating in excess of 10 percent have been met. With regard to the possibility of a rating in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the June 2016 VA examiner stated that there had been no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There is no evidence to show that a physician ordered bed rest for his low back symptoms, and there is no objective evidence of incapacitating episodes within the meaning of the regulation. See Diagnostic Code 5243, Note 1. Accordingly, an initial evaluation in excess of 10 percent is not warranted. With respect to possibility of entitlement to a rating in excess of 10 percent under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. DeLuca; VAGCOPPREC 9-98. The previously discussed evidence shows that the Veteran had flexion to no less than 70 degrees (when onset of pain in considered), and a combined range of motion of the thoracolumbar spine of no less than 215 degrees. The May 2014 DBQ shows that there was no additional loss of motion following repetitive use testing. The June 2016 DBQ shows that there was no additional loss of function or range of motion after three repetitions, and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Even taking into account the complaints of back symptoms, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, or neurological impairment or incoordination, such that when the ranges of motion in the back are considered together with the evidence of functional loss due to right back pathology, the evidence does not support a conclusion that the loss of motion in the back more nearly approximates the criteria for a rating in excess of 10 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. Initial evaluation in excess of 10 percent, TBI. With regard to the history of the disability in issue, the Veteran’s service treatment records include a February 2007 MEB which notes that he was in an MVA in November 2005 in which he was struck in the posterior aspect of his head. In August 2014, the RO granted service connection for a TBI with headaches, evaluated as noncompensable. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In July 2015, the RO granted the claim to the extent that it assigned a separate 30 percent rating for migraine headaches. In December 2016, the RO granted the claim to the extent that it assigned an additional 10 percent evaluation for TBI, with an effective date commensurate with the date of service connection (February 23, 2012). The Veteran’s traumatic brain injury has been evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8045. Under DC 8045, there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine them under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. Assign a 100- percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, DC 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. As an initial matter, the Board notes that a separate rating is are in effect for headaches. As such his headaches have been separately evaluated under diagnostic codes other than DC 8045, and these symptoms may not be considered in the evaluation of his residuals of TBI, as this would constitute pyramiding. See 38 C.F.R. §§ 4.14, 4.124a, DC 8045 Note (1); Esteban v. Brown, 6 Vet. App. 259 (1994). The medical evidence includes a July 2014 VA TBI DBQ, which shows the following: The Veteran reported a history of being in an MVA in 2005, with a plate put in his skull six months later to relieve pressure. He last worked in 2011. The following categories of symptomatology were not applicable: memory, attention, concentration, executive functions, judgment, and neurobehavioral effects. Social interaction is routinely appropriate. He is always oriented to person, time, place, and situation. Motor activity is normal. Visual spatial orientation is normal. There are no subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, other than are related to his headaches. He is able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness is normal. A brief transparent symptom screening test (SCL90R) did not yield clinically elevated scales for depression, anxiety-based concerns. Therefore, there is not conclusive evidence to support a DSM-5 mental health disorder at this time. The DBQ indicates that there was no impact on his ability to work. VA progress notes dated in 2014 note that there was some hopelessness, depression and anxiety, but no recent or remote suicidal behavior, poor impulse control, poor reality testing, psychosis or organicity, or neurological deficits. The diagnoses were dysthymia and generalized anxiety disorder. A VA TBI DBQ, dated in June 2016, shows that the examiner stated that there had been no changes since the Veteran’s initial TBI evaluation (in 2014). The following categories of symptomatology were noted not to have a response provided: memory, attention, concentration, executive functions, judgment, social interaction, orientation, neurobehavioral effects, communication, and consciousness. He was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. There are no subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, other than are related to his headaches. There are no residual conditions attributable to a traumatic brain injury that impact his ability to work. A VA TBI DBQ, dated in September 2016, shows the following: With regard to memory, attention, concentration, executive functions, there was a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. Judgment, motor activity, and visual spatial orientation are normal. Social interaction is routinely appropriate. He is always oriented to person, time, place, and situation. There are no subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, other than are related to his headaches. There are no neurobehavioral effects. He is able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness is normal. There are no residual conditions attributable to a traumatic brain injury that impact his ability to work. An initial evaluation in excess of 10 percent is not warranted. The findings in the VA TBI DBQs have been discussed. There are no findings that warrant more than a “1” level of impairment in any facet of cognitive impairment, nor are the findings in any of the other medical evidence to show that the Veteran has more than a “1” level of impairment in any facet of cognitive impairment. With regard to psychiatric symptoms, none of the VA examiners determined that the Veteran has neurobehavioral effects that are related to his TBI. Nevertheless, the Veteran has been diagnosed with anxiety and dysthymia during the time period in issue. However, there is no basis upon which to assign more than a “1” for such symptoms. There are no findings to show one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. Given the foregoing, there is no basis to find that the Veteran’s symptoms exceed level “1” impairment in any category. Therefore, the criteria for an initial evaluation in excess of 10 percent under 38 C.F.R. § 4.124a, DC 8045 is not warranted. REASONS FOR REMAND The claim for service connection for a right ankle disability is remanded. During his hearing, held in August 2019, the Veteran testified that he hurt his right ankle twice during service, once during training for the military police in 1999, and once while on maneuvers in Alaska in 2003, at which time he was told that his injury involved an ankle fracture. After his 2003 injury he wore a boot and he was on crutches for three months. He was then provided with a cane. The Veteran’s service treatment records show that in November 2003, the Veteran was treated for a one-month history of right ankle pain. He was provided with an Ace wrap and given Naproxen. He was profiled (given light duty) for seven days, and he was given Motrin and an ankle wrap. The assessment was right ankle sprain. A VA ankle disability benefits questionnaire (DBQ), dated in July 2014, shows that the Veteran reported that he broke his right ankle in 2003, and that at some point since then was told there had been a previous fracture. The examiner stated, “Only reference to a right ankle injury in the service was in 1999 when he twisted it jogging. X-ray at that time did not show any fracture.” The examiner provided a negative etiological opinion. An adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim, notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. The June 2014 VA examiner did not consider the evidence of the Veteran’s right ankle injury in 2003. Under the circumstances, the June 2014 VA examination report is insufficient for adjudicatory purposes, and a remand is required. Id. The claim for service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran’s service treatment records do not show complaints of psychiatric symptoms, or a diagnosed acquired psychiatric disorder. Following service, reports associated with a July 2013 SSA decision note anxiety and depression, during which time the Veteran was taking Amitriptyline, Zoloft, and Lorazepam. See reports from B.B., M.D., dated in 2013. A November 2014 VA progress note shows that the Veteran was diagnosed with a dysthymia and a general anxiety disorder. A VA TBI DBQ, dated in July 2014, shows that the examiner stated that existing records are silent for any mental health diagnosis or treatment either during service or after discharge. A brief transparent symptom screening test (SCL90R) did not yield clinically elevated scales for depression, anxiety-based concerns. Therefore, there is not conclusive evidence to support a DSM-5 mental health disorder at this time. The Veteran does report a variety of issues (unemployment, divorce, financial stressors, chronic pain, chronic health issues) as possible stressors that could contribute to an adjustment disorder, but this is inconclusive at this time. The Veteran filed his claim in January 2014, and he is shown to have an acquired psychiatric disorder during the time period in issue. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The July 2014 VA TBI DBQ did not include an opinion as to whether there was a relationship between a psychiatric disorder and his service, or a service-connected disability. Barr. On remand, the Veteran should be afforded an examination to include an opinion as to whether he has a psychiatric disorder that was caused or aggravated by service-connected disability. Id. The claim for an increased rating for ischemic heart disease status post myocardial infarction and stenting is remanded. The Veteran’s most recent VA examination of his heart was in June 2016. At his August 2019, the Veteran testified that he underwent bypass surgery in 2017. Private treatment reports, received in 2020, show that the Veteran underwent a coronary artery bypass graft (CABG) times three in October 2017. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The October 2017 Veteran’s CABG surgery was after his most recent VA heart examination, and it may indicate a worsening of his condition. On remand, the Veteran should be afforded another examination of his heart. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a VA examination of his right ankle. The examiner should address the following questions: a) What is/are the Veteran’s current right ankle diagnosis/diagnoses? b) Is it at least as likely as not (50 percent or greater) that the Veteran has a diagnosed right ankle condition that either began during or was otherwise caused by his military service? Why or why not? The Veteran’s right ankle treatment in 2003 should be discussed. 2. Schedule the Veteran for a VA psychiatric examination. The examiner should be notified that service connection is currently in effect for traumatic brain injury, residuals of cervical compression with degenerative joint and disc disease, sleep apnea, migraine headaches, ischemic heart disease, L5-S1 radicular pain with partial right foot drop, right shoulder SLAP injury with ligamentous injury and limitation of motion and degenerative joint disease, herniated nucleus pulposus with degenerative joint and disc disease, right ear hearing loss, and tinnitus. The examiner should address the following questions: a) What is/are the Veteran’s current psychiatric diagnosis/diagnoses? b) Is it at least as likely as not (50 percent or greater) that the Veteran has a diagnosed acquired psychiatric condition that either began during or was otherwise caused by his military service? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disorder that was caused or aggravated (made worse) by service-connected disability? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the psychiatric disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the psychiatric disorder. 38 C.F.R. § 3.310. If such cannot be done, it should be explained why. 3. Schedule the Veteran for a VA examination by a physician to determine the current level of impairment due to service-connected ischemic heart disease status post myocardial infarction and stenting. If METS testing cannot be done because of medical reasons, the examiner is asked to estimate the level of activity expressed in METS. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.