Citation Nr: 21010001 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-23 711 DATE: February 23, 2021 ORDER Entitlement to an initial evaluation of 10 percent, and no higher, for the period prior to March 28, 2016, for right knee status-post meniscal tear, evaluated as limitation of flexion, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent, for the period beginning March 28, 2016, for right knee status-post meniscal tear, evaluated as limitation of flexion, is denied. Entitlement to an evaluation of 10 percent, and no higher, for slight instability of the right knee status post meniscal tear is granted. Entitlement to an evaluation of 20 percent, for the period beginning March 28, 2016, for dislocated semilunar cartilage, with frequent episodes of locking, pain and effusion into the joint, for right knee status post meniscal tear, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent, for the period prior to March 28, 2016, for lumbar spine osteoarthritis and intervertebral disc syndrome is denied. Entitlement to a 20 percent evaluation for the period beginning March 28, 2016, for lumbar spine osteoarthritis and intervertebral disc syndrome is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation in excess of 30 percent, for the period prior to March 26, 2016, and an evaluation in excess of 70 percent beginning March 26, 2016, for posttraumatic stress disorder (PTSD), is denied. Entitlement to a 30 percent evaluation, for the period prior to January 31, 2014, for obstructive sleep apnea (OSA), is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 50 percent evaluation, for the period beginning January 31, 2014, for OSA, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation in excess of 30 percent for bilateral plantar fasciitis is denied. Entitlement to an initial evaluation of 10 percent for the period prior to March 28, 2016, for gastroesophageal reflux disease (GERD), is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent for the period beginning March 28, 2016 for GERD is denied. Entitlement to a compensable initial evaluation for tension headaches is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), prior to October 23, 2014, is denied. FINDINGS OF FACT 1. At no point did the Veteran’s range of motion disability of the right knee status post meniscal tear manifest flexion limited to 45 degrees or less or extension limited to 10 degrees or more. 2. During the period prior to March 28, 2016, the Veteran’s right knee manifested pain. 3. During the entire period on appeal the Veteran’s right knee disability manifested slight instability. 4. During the period on appeal beginning March 28, 2016, the Veteran’s right knee disability manifested dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. 5. For the period prior to March 28, 2016, the Veteran’s lumbar spine disability did manifest incapacitating episodes or forward flexion 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. 6. Beginning March 28, 2016, the Veteran’s lumbar spine disability manifested localized tenderness resulting in abnormal gait or abnormal spinal contour. There is no evidence of flexion to 30 degrees or less or favorable ankylosis. 7. Prior to March 26, 2016, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 8. Beginning March 26, 2016, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 9. Prior to January 31, 2014, the Veteran’s OSA resulted in daytime hypersomnolence. 10. Beginning January 31, 2014, the Veteran’s OSA required the use of a breathing assistance device. At no point during the period on appeal did the Veteran’s sleep apnea results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, require tracheostomy. 11. At no point during the period on appeal did the Veteran’s disability manifest marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. There is no evidence that the plantar fasciitis resulted on loss of use of the foot. 12. During the period on appeal the Veteran’s GERD initially manifested pyrosis and regurgitation and as of March 2016 manifested, persistently recurrent epigastric distress, pyrosis, reflux, and substernal pain. 13. At no point during the period on appeal did the Veteran’s GERD manifest symptoms that were productive of considerable or severe impairment of health, dysphagia, hematemesis, or melena. 14. At no point during the period on appeal did the Veteran’s headaches occur with characteristic prostrating attacks averaging one in 2 months over a period of several months. 15. During the period on appeal prior to October 23, 2014, the Veteran’s service-connected disabilities do not preclude substantially gainful employment. Since October 23, 2014, the Veteran is in receipt of a combined 100 percent evaluation for his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, an no higher, for the period prior to March 28, 2016, for right knee status post meniscal tear, based upon limitation of flexion, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for an evaluation in excess of 10 percent, for the period beginning March 28, 2016, for range of motion disability of the right knee status post meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for a separate rating of 10 percent, and no higher, for slight instability of the right knee status post meniscal tear, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 4. The criteria for a separate rating of 20 percent, for the period beginning March 28, 2016, for dislocated semilunar cartilage, with frequent episodes of locking, pain and effusion into the joint, for right knee status post meniscal tear, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 5. The criteria for an initial rating in excess of 10 percent, for the period prior to March 28, 2016, for lumbar spine osteoarthritis and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 6. The criteria for a rating of 20 percent, and no higher, for the period beginning March 28, 2016, for lumbar spine osteoarthritis and intervertebral disc syndrome, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 7. The criteria for an initial evaluation in excess of 30 percent, for the period prior to March 26, 2016, and an evaluation in excess of 70 percent beginning March 26, 2016, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 8. The criteria for an initial disability rating of 30 percent, and no higher, for the period prior to January 31, 2014, for OSA have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6847. 9. The criteria for a 50 percent rating, and no higher, for the period after January 31, 2014, for OSA have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6847. 10. The criteria for an initial evaluation in excess of 30 percent for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276 (2020); Diagnostic Code 5269, 85 Fed. Reg. 76, 453 (November 30, 2020). 11. The criteria for a 10 percent rating, and no higher, for the period prior to March 28, 2016, for GERD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 12. The criteria for a rating in excess of 10 percent rating, for the period after March 28, 2016, for GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 13. The criteria for a compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 14. The criteria for an award of TDIU for the period prior to October 23, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1989 to May 2013. The Veteran testified at a hearing before the undersigned in September 2019. In a September 2020 rating decision, during the period on appeal, the evaluation of the Veteran’s right knee disability was increased to 10 percent, effective March 28, 2016. The claim before the Board is as noted above. See AB v. Brown, 6 Vet. App. 35 (1993). The issues were previously before the Board in December 2019. Pursuant to the Board’s remand examinations regarding the Veteran’s lumbar spine, PTSD, sleep apnea, and right knee were scheduled, and the Veteran was provided with a VA Form 21-8940. The Veteran did not appear for the examinations and a completed VA Form 21-8940 was not received. The “duty to assist is not always a one-way street," and a claimant has an obligation to provide VA information necessary to substantiate the claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds there has been substantial compliance with the remand directives for the claim decided herein.  Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). During the pendency of the Veteran’s appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes pertinent to this appeal were to evaluating knee and plantar fasciitis disabilities. 1. Entitlement to a compensable initial evaluation, for the period prior to March 28, 2016, and in excess of 10 percent thereafter, for right knee status-post meniscal tear, evaluated as limitation of flexion. The Veteran contends that his knee disability is more severe than contemplated by the current evaluation. The Veteran’s right knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code 5257 (instability) and Diagnostic Code 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. Separate ratings may be assigned for limitation of flexion, limitation of extension and instability of the knee of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997). Separate ratings are not precluded for limitation of motion (Codes 5003, 5260 and 5261), meniscal disability (Codes 5258 and 5259) and instability or subluxation (Code 5257). Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. Under the older version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. In the prior remand, the Board specifically noted that January 2013 and March 2016 VA knee examinations were inadequate in terms of considering the effects of pain and flare-ups and a new examination was needed. Pursuant to a Board remand in December 2019, the Veteran was scheduled for a VA examination regarding the current severity of his knee disability; however, the Veteran failed to appear for the examination. The AOJ specifically noted the failure to report in the September 2020 Supplemental Statement of the Case (SSOC) and neither the Veteran nor his representative provided any good cause or argument as to why the examination should be rescheduled. On VA examination in January 2013, the examiner noted a right leg length discrepancy and the Veteran was status-post right knee meniscal tear. He reported flare-ups and described the impact as making it hard to walk and sometimes gets comfort sitting. Range of motion testing of the right knee showed 140 degrees or greater of flexion with no objective evidence of painful motion. There was 0 or any degree of extension without objective evidence of painful motion. The Veteran was able to perform repetitive use testing and there was no change in the range of motion. There was no functional loss for the right lower extremity. He had pain on movement of the left knee. There was tenderness or pain to palpation for the joint line or soft tissues of both knees. Muscle strength and joint stability tests were normal. There was no evidence of patellar subluxation/dislocation. He did not have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The right leg was 1 centimeter shorter than the left. The Veteran had meniscal tear, frequent episodes of joint locking, and frequent episodes of joint pain in the right knee. However, there was not frequent episodes of joint effusion. He had not had a meniscectomy or other surgical procedure. He did not use any assistive devices. Knee imaging studies did not show degenerative or traumatic arthritis and there was no evidence of patellar subluxation. The Veteran’s knee disabilities did not impact his ability to work. On VA examination in March 2016, the diagnosis was right knee meniscal tear. The Veteran did not report flare-ups of the knee. He had decreased ability to walk, stand, squat, kneel, and climb. Range of motion testing of the right knee showed 130 degrees. There was 0 degree of extension. There was no pain noted on examination. There was no evidence of pain on weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was described as peripatellar and mild. There was objective evidence of crepitus. Upon observed repetitive use there was no change in range of motion. The Veteran was not examined after repeated use over time or during flare-up. Pain, weakness, fatiguability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-up. The Veteran had less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc.). Muscle strength testing was normal and there was no atrophy. There was no ankylosis of the knee. There was no evidence or history of recurrent subluxation, lateral instability, and effusion. Stability tests were normal. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran was noted to have a meniscal condition described as meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. The severity was reported to moderate with a frequency of once a month. The Veteran occasionally used a cane. The knees impacted his ability to work because it decreased the ability to squat, kneel, and climb more than infrequently. The knees decreased in the ability to stand or walk more than 45 minutes to an hour without a break. At the hearing before the undersigned the Veteran reported that his knee gives way and buckles. He obtained his own brace for his knee. The Veteran was initially granted service connection for right knee status post meniscal tear, effective June 1, 2013. The Board has reviewed the record for the entire appeal period and will evaluate all manifestations of the right knee disability from June 2013. The initial noncompensable rating was assigned pursuant to Diagnostic Code 5299-5257. Subsequently, in a September 2020 rating decision, the evaluation of the right knee disability was increased to 10 percent, effective March 28, 2016, pursuant to Diagnostic Code 5260, for limitation of flexion. Given that history, and the evidence outlined, the Board finds that consideration of separate ratings under Diagnostic Codes 5257 (both versions), 5258, 5260 and 5261 are appropriate diagnostic codes for consideration for the period on appeal. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). For the period prior to March 28, 2016, the Veteran’s right knee did not manifest a compensable reduction in the range of motion. However, during the period prior to March 28, 2016, the Veteran’s right knee manifested pain on palpation, but there is no notation of pain during motion of the right knee. See VA Examination, January 2013. Affording the Veteran the benefit of the doubt, the Veteran’s right knee was painful prior to March 28, 2016, and entitlement to an evaluation of 10 percent, and no higher, is granted pursuant to Diagnostic Code 5260. However, at no point during the period is a separate compensable rating under Diagnostic Code 5261 for limitation of extension warranted. During the period beginning March 28, 2016, the Veteran’s right knee did not manifest a compensable loss of range of motion in either flexion or extension. The criteria for a rating in excess of 10 percent, pursuant to Diagnostic Codes 5260 or a separate compensable rating under Diagnostic Code 5261, are not met or more closely approximated. During the entire period on appeal, the Veteran has reported that his knee gives way and buckles. He reported that he obtained his own brace for his knee. There was no evidence of instability on objective examination. Affording the Veteran the benefit of the doubt, the Board finds that a separate evaluation of 10 percent under the old rating criteria, and no higher, for slight instability of the right knee is warranted for the entire period on appeal. The older version of Diagnostic Code 5257 does not require objective medical evidence to assign a rating for instability. English v. Wilkie, 30 Vet. App. 347 (2018). The Veteran’s knee disability includes a separate meniscal condition and the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258, during the period on appeal beginning March 28, 2016. Although the Veteran had a meniscal condition of the right knee prior to March 28, 2016, and was noted to have locking and pain upon examination in January 2013, the meniscal condition was not noted to show effusion until the VA examination in March 2016 when the meniscus disability was manifested by locking, pain, and effusion into the joint. The right knee pain identified in the record prior to March 2016 is contemplated by the evaluation pursuant to Diagnostic Code 5260 for that period. On examination in January 2013, the Veteran’s right knee was noted to have no functional loss, the right knee symptoms do not warrant an evaluation pursuant to Diagnostic Code 5258 until March 28, 2016. An evaluation of 20 percent is the maximum schedular rating under that Code; a higher rating is not warranted. 2. Entitlement to an initial evaluation in excess of 10 percent for lumbar spine osteoarthritis and intervertebral disc syndrome. The Veteran contends that his back disability is more severe than currently evaluated. The Veteran’s lumbar spine osteoarthritis and IVDS are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252-5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In the prior remand, the Board specifically noted that January 2013 and March 2016 VA back examinations were inadequate in terms of considering the effects of pain and flare-ups and a new examination was needed. Pursuant to a Board remand in December 2019, the Veteran was scheduled for a VA examination regarding the current severity of his back disability; however, the Veteran failed to appear for the examination. The AOJ specifically noted the failure to report in the September 2020 SSOC and neither the Veteran nor his representative provided any good cause or argument as to why the examination should be rescheduled. The January 2013 examination included a diagnosis of intervertebral disc syndrome. Flare-ups were described as spasms most of the time that make it harder to concentrate or get comfortable. Range of motion was tested. Range of motion was reported as 90 degrees or greater of forward flexion with objective evidence of painful motion at 90 degrees or greater, extension of 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater, right and left lateral flexion of 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater, and right and left lateral rotation of 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater. After repetitive-use testing the Veteran did not have any additional limitation of range of motion. The examiner noted the Veteran had functional loss and/or functional impairment described as pain on movement, but did not quantify the extent of the impairment. There was no localized tenderness or pain to palpation for joints and/or soft tissue or guarding or muscle spasm of the thoracolumbar spine. The Veteran had not had any incapacitating episodes related to IVDS over the prior 12 months. He did not use an assistive device. Imaging studies showed arthritis. The examiner said the Veteran’s back disability impacted his ability to work by limiting lifting and bending as well as standing for long periods of time. In May 2014 the Veteran’s lumbar spine mobility was slightly limited through active range of motion upon flexion at 80 and extension of -5 with right sided low back pain. There was tenderness on the right lumbar area with taut bands. In October 2015 the Veteran the Veteran had full lumbar spine mobility through active range of motion upon flexion at 90 and extension at -5 with right sided low back pain. There was tenderness on the right lumbar area. The March 2016 VA examination showed diagnoses of osteoarthritis and intervertebral disc syndrome, with peripheral neuropathy of the bilateral lower extremities. The Veteran reported no flare-ups. Range of motion was reported as 85 degrees, extension of 20 degrees, right and left lateral flexion of 20 degrees, and right and left lateral rotation of 20 degrees. The examiner noted pain causes functional loss with forward flexion, extension, right and left lateral flexion, and right and left lateral rotation, but did not quantify the extent of any additional impairment due to pain. There was no evidence of pain with weight bearing. After observed repetitive use there was no change in range of motion. The Veteran was not examined immediately after repeated use over time or during flare-up. Pain, weakness, fatiguability or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. The examiner identified localized tenderness resulting in abnormal gait or abnormal spine contour. There were no neurological abnormalities other than radiculopathies of the lower extremities and no ankylosis. The Veteran had IVDS but did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The back condition impacted the Veteran’s ability to conduct his work by decreasing the ability to squat, kneel, climb, and lift more than medium weight. At the hearing before the undersigned the Veteran reported that at certain points during the day his back will tighten up more and that he had constant pain. Pursuant to a Board remand in December 2019, the Veteran was scheduled for a VA examination regarding the current severity of his back disability; however, the Veteran failed to appear for the examination. The AOJ specifically noted the failure to report in the September 2020 SSOC and neither the Veteran nor his representative provided any good cause or argument as to why the examinations should be rescheduled. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lumbar spine osteoarthritis and IVDS based on incapacitating episodes at any time during the appeal period. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. For the period prior to March 28, 2016, the preponderance of the evidence is against a rating in excess of 10 percent under the General Rating Criteria for the back. The Board acknowledges the Veteran’s lay reports of symptoms. However, even considering those reports and noted functional loss, the degree of additional limitation reflected by the statements that he had constant pain and that his back would tighten up during certain points during the day, would not result in limitation of motion more nearly approximating 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. For the period beginning March 28, 2016, the criteria for a 20 percent rating are ment. The VA examiner specifically identified localized tenderness resulting in abnormal gait or abnormal spine contour The criteria for a 40 percent rating are not met or more closely approximated at any time during the appeal period. There is no evidence of flexion limited to less than 30 degrees or of favorable ankylosis of the entire thoracolumbar spine. The Veteran is separately evaluated for related right and left lower extremity radiculopathies and the competent evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. 3. Entitlement to an initial evaluation in excess of 30 percent, for the period prior to March 26, 2016, and an evaluation in excess of 70 percent beginning March 26, 2016, for PTSD. The Veteran contends that his PTSD is more severe than evaluated. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher, during the period prior to March 26, 2016, and in excess of 70 percent thereafter. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher, prior to March 26, 2016, or greater than 70 percent, thereafter. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating during the period prior to March 26, 2016, and 70 percent disabling thereafter. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for an evaluation in excess of 30 percent, during the period prior to March 26, 2016, and in excess of 70 percent, thereafter. The Veteran was afforded a VA examination in January 2013. The Veteran was diagnosed with PTSD. The examiner noted that the Veteran’s disability caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by medication. He got along okay with his brothers but better with his sister. He reported being married for 17 years. They were having some marital difficulties and were in marital therapy. He was unclear if the relationship would work. They had children and the Veteran reported that he got along reasonably well with his children but was sometimes easily irritated. The Veteran completed a college degree in service and hoped to obtain a management job when he left service. He received psychiatric treatment and was taking medication. He felt that he was less easily startled with the medication. He denied a history of psychiatric hospitalizations or emergency room visits. He had one episode of pushing his daughter but no other acts of violence. He denied panic attacks, suicidal thoughts, or suicide attempts. Under the diagnostic criteria the Veteran was noted to have physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event, efforts to avoid thoughts, feelings or conversations associated with the trauma, marked diminished interest or participation in significant activities, feeling of detachment or estrangement from others, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and exaggerated startle response. The PTSD symptoms were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Symptoms were reported as depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran was easily startled by any type of loud noise, and several times, he has hit the ground fearing that it was an attack. He was no longer finding joy in normal activities and his wife felt he was very detached. He was getting six hours of broken sleep at night. He had trouble concentrating on and off and continued to be startled by noise or sudden movements. In May 2013 the Veteran had a mildly flat affect. In December 2013 treatment notes the Veteran was described as casually and appropriately dressed. He had good hygiene and made good to fair eye contact. Speech was within normal limits. Mood was neutral to euthymic to irritable. Affect was full range and congruent with mood. He denied suicidal ideation, plan, and intent, and denied homicidal ideation. Thought process was linear, coherent, succinct, and goal-directed. Thought process was also described as sequential. There were no psychotic symptoms, cognitive deficits, or memory impairment reported or observed. Judgment and insight were intact to adequate. In a December 2013 treatment note the Veteran identified difficulties sleeping, hypervigilance, and irritability that contributed to the demise of his marriage and negatively impacted his relationships with his four children. Treatment notes from January 2014 to June 2014 showed that the Veteran was casually dressed and made good eye contact. He was generally noted to have neatly dressed; however, was noted once to be slightly disheveled. In a note he denied major angry episodes. He described trouble sleeping. His speech was normal. Affect was normal to constricted. Thought process was described as sequential, linear, coherent, and fluent. Psychotic symptoms were not reported or observed. Memory was grossly intact. Judgment and insight were adequate to good. He had no suicidal or homicidal ideations. In January 2014 the Veteran reported that he lived with his mother and helped her in her business of running a mobile home park. In February 2015 the Veteran acknowledged that he had trouble with anger. In July 2014, September 2014, November 2014, January 2015, February 2015 and August 2015 the Veteran was casually dressed and had okay to good eye contact. His demeanor was cooperative to slightly guarded. Speech was or normal volume and rate. Mood was stable to mildly dysphoric to euthymic with affect consistent with mood. He denied suicidal and homicidal ideation. Thought process was sequential. He denied psychosis. He was oriented times three, memory was intact, and he was attentive. Insight and judgment were adequate. In August 2015, November 2015, and February 2016 he was noted once to be slightly disheveled. He had okay to good eye contact. His demeanor was slightly guarded to cooperative. Speech was normal. Mood was euthymic to stressed with affect consistent with mood. He denied suicidal and homicidal ideation. Thought process was sequential. He denied psychosis. He was oriented time three, memory was intact and he was attentive. Insight and judgment were adequate. In August 2015 the Veteran reported that his children came over for the summer and they had a nice time. He had a disagreement with his sister over her efforts to interrupt him during an argument with his son. In November 2015 the Veteran reported that he was trying to find work but wondered if he could complete a 40 hour workweek. Mood was euthymic with affect consistent with mood. The Veteran was afforded a VA examination in March 2016. The Veteran was diagnosed with PTSD. The Veteran was noted to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He had symptoms of nightmares, night sweats, anger management difficulties, anhedonia, low motivation, difficulties with concentration, mood swings and mood instability, irritability, depression, anxiety, sleep difficulties, difficulties with initiating sleep and psychomotor agitation. He continued to receive PTSD treatment from a Vet Center and was taking medication. Under the diagnostic criteria the Veteran was noted to have recurrent, involuntary, and intrusive distressing memories of the traumatic event, recurrent distressing dreams, intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event, and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event. He had avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events. He had irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, exaggerated startle response, problems with concentration, and sleep disturbance. There were symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred less than weekly, near-continuous depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adopting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationship. The Veteran presented alert and fully oriented. Hygiene was adequate. Sleep was poor, appetite was unremarkable. Mood was depressed with a full range of affect. The Veteran was generally cooperative. Eye contact was unremarkable. Speech was clear and fluent. Insight and judgment were intact. There was no evidence of a thought disorder. Thought process was linear and future-goal oriented. No psychotic symptoms were endorsed. The Veteran denied any current suicidal or homicidal ideation, intent, or plan. In July 2016 the Veteran reported that he had a pleasant time with his children who came to visit. He was casually dressed, with good eye contact. His demeanor was cooperative, somewhat guarded, which was his usual baseline. Speech was normal in volume and rate. Mood was mildly depressed and his affect was consistent with mood, somewhat constricted which was his baseline. He denied suicidal and homicidal ideation. Thought process was sequential. He denied psychosis. He was oriented times three, memory was intact, and he was attentive. Insight and judgment were adequate. Treatment records from October 2016 demonstrate that the Veteran remained socially involved. In October 2016 he was noted to be managing a trailer park. In January 2017 the Veteran reported that he was going with his sister to spread his mother’s ashes in the ocean. He indicated that his family came over for the holidays. He had a job of managing a trailer park. In April 2017 the Veteran reported that his oldest son moved out of the house and did not keep in touch much. In August 2017 the Veteran was busy managing the mobile park. In November 2017 the Veteran reported that his son was living with him and he was dealing with the stress of managing his medicine. In March 2018 the Veteran reported that he had stress dealing with a business arrangement that has incurred some financial expenditures beyond what he planned for and that he struggled with relationship issues with his girlfriend. In July 2018 the Veteran reported a long distance relationship and indicated this son lived with him. In October 2018 the Veteran reported that he was going to spend the holidays with his sister. His older son lived with him. In April 2019 the Veteran reported that he had some trouble with a friend/roommate who was not pulling his weight. He was going to have visitors for the summer. In September 2019 the Veteran was noted to continue to be an apartment manager and had a roommate. He also had a son living there. The Board finds that increased ratings are not warranted for any period on appeal. The criteria for an evaluation in excess of 30 percent are not met or more closely approximated for the period prior to March 26, 2016. During this period, the Veteran’s PTSD manifest some flattened and constricted affect, a notation of a problem with anger, sleep disturbance, and disturbances of motivation and mood. However, the Veteran’s PTSD did not manifest problems with speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. In addition, there was no indication of obsessional rituals; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. The Veteran reported that he lived with his mother and still had contact with his children. There is no indication of an inability to establish and maintain relationships. There is also no evidence that symptoms related to PTSD affected his speech or cognitive abilities. Therefore, as the evidence does not show that the Veteran’s PTSD more nearly approximates the criteria for an evaluation in excess of 30 percent for the period prior to March 26, 2016, the appeal is denied. Entitlement to an evaluation in excess of 70 percent, for the period beginning March 26, 2016, for PTSD, is not warranted. During the entire period on appeal the Veteran has maintained relationships. Therefore, at no point during the period on appeal did the Veteran’s PTSD manifest total social impairment. As such, entitlement to an evaluation in excess of 70 percent, for the period beginning March 26, 2016, for PTSD, is denied. 4. Entitlement to a compensable initial evaluation, for the period prior to October 23, 2014, and an evaluation in excess of 50 percent thereafter, for OSA. The Veteran contends that his OSA is more severe than evaluated. Specifically, the Veteran contends that the rating for the period prior to October 23, 2014, is not correct. The Veteran’s OSA is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6847. Under Diagnostic Code 6847 sleep apnea which manifests persistent daytime hypersomnolence warrants a 30 percent disability rating. Sleep apnea that requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine warrants a 50 percent disability rating. A 100 percent disability rating is warranted for sleep apnea which results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, requires tracheostomy. See 38 C.F.R. § 4.97, Diagnostic Code 6847. In January 2014 the Veteran underwent a sleep study and a CPAP mask was used. In March 2014 the Veteran reported that he hoped to obtain a CPAP machine in the near future. In July 2014 the Veteran underwent a sleep apnea study and was issued a CPAP mask. In October 2014 the Veteran was noted to have moderate obstructive sleep apnea. CPAP titration showed improvement of obstructive apneas and hypopneas. A CPAP was noted to be ordered. The Veteran was afforded a VA examination in March 2016. The Veteran was diagnosed with OSA. He was not on continuous medication but used a CPAP. He had persistent daytime hypersomnolence but there was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement of a tracheostomy. Sleep apnea impacted his ability to work by decreasing the ability to drive certain commercial vehicles, decreasing ability to work on heights or ladders, and decreasing the ability to work around certain dangerous equipment or machinery. At the hearing the Veteran reported that the Veteran had persistent daytime hypersomnolence since 2013. Entitlement to an evaluation of 30 percent, and no higher, is warranted for the period prior to January 31, 2014, for OSA. Prior to January 31, 2014, there is no indication of a need for a CPAP machine; however, the Veteran has competently and credibly reported daytime hypersomnolence since service. As such, affording the Veteran the benefit of the doubt, entitlement to an evaluation of 30 percent, and no higher, for the period prior to January 31, 2014, for OSA, is granted. Entitlement to an evaluation of 50 percent, and no higher, for the period beginning January 31, 2014, for OSA is warranted. On January 31, 2014, the Veteran underwent a sleep study and a CPAP mask was utilized. Thereafter, in an October 2014, sleep medicine consult, the Veteran was noted to have had an AHI of 13 in an April 2014 screening apnea study. A full night CPAP titration study was performed in October 2014 and the Veteran was found to have marked improvement with CPAP and a CPAP was ordered. Affording the Veteran the benefit of the doubt, the Veteran’s OSA required a CPAP as of January 31, 2014. However, at no point during the period on appeal did the Veteran’s OSA cause chronic respiratory failure with carbon dioxide retention or cor pulmonale; or, require a tracheostomy. Therefore, an evaluation in excess of 50 percent, for the period beginning January 31, 2014, is not warranted. As such, entitlement to an evaluation of 50 percent, and no higher, for the period beginning January 31, 2014, for OSA, is granted. 5. Entitlement to an initial evaluation in excess of 30 percent for bilateral plantar fasciitis. Historically, the Veteran’s plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under the revised rating criteria, plantar fasciitis is evaluated under a code specific to plantar fasciitis, Diagnostic Code 5269. Under the revised rating criteria, plantar fasciitis is evaluates based on a combination of extent (one foot or both feet) and response to treatment (responsive or nonresponsive). A 30 percent rating is warranted where plantar fasciitis does not respond to both surgical and non-surgical treatment, if both feet are affected. A 20 percent disability rating if one foot is affected. Otherwise, a 10 percent disability rating is warranted, unilateral or bilateral. Note (1) to Diagnostic Code 5269: With actual loss of use of the foot, rate 40 percent. Note (2): If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. The Board finds that an increased rating is not warranted under either version of rating criteria for any period on appeal. The Veteran was afforded a VA foot examination in January 2013. The Veteran was diagnosed with bilateral plantar fasciitis. The Veteran reported that his foot hurt all of the time. He did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or any other foot injuries. Evidence of bilateral weak foot was not found. The Veteran did not use an assistive device. Imaging studies did not show abnormal findings. The Veteran’s foot disability impacted the Veteran’s ability to work because it limited standing and walking for long periods of time. In March 2015 the Veteran was noted to have a history of bilateral plantar fasciitis present for three years. He had pain with activity, pain with initial steps, and pain improved with rest. Pain was rated as a 4 to 6 out of 10. Prior treatment consisted of custom orthotics since 2013 with only partial relief. He had past steroid injections without benefit. There was pain to palpation of the lateral plantar arch area bilaterally. He had high arched foot with nonweight bearing (NWB) with high forward/further flexion (FF) varus. Low arch and overpronated in stance. The Veteran was afforded a VA foot examination in March 2016. The Veteran was diagnosed with bilateral plantar fasciitis. The Veteran was not noted to have any flat foot, Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, acquired pes cavus, malunion/nonunion of tarsal/metatarsal bones, foot injuries, arthritis, or inflammatory conditions. The examiner noted that the Veteran had bilateral foot pain and pain on manipulation of the feet. There was no swelling on use and no characteristic calluses. The Veteran used arch supports. He did not have extreme tenderness of plantar surfaces on one or both feet. The Veteran did not have decreased longitudinal arch height of one or both on weight-bearing. The was no objective evidence of marked deformity of one or both feet. There was no marked pronation of one or both feet. The weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was no inward bowing of the Achilles’ tendon. He did not have marked inward displacement and severe spasm of the Achilles’ tendon on manipulation of one or both feet. The examiner identified the severity of the plantar fasciitis as mild, the condition chronically compromised weight bearing and required arch supports, custom orthotic inserts or shoe modifications. There was pain on movement, pain on weight-bearing, and pain on non-weight-bearing. He regularly used arch supports. Imaging studies showed no arthritis. Tests showed mild cortical irregularity along the second metatarsal diaphyses which may represent sequela of service injury. The foot disability impaired the ability to work by decreasing the ability to walk or stand more than 30 to 45 minutes without a break, decrease ability to climb more than infrequent-occasional, decrease ability to run more than infrequently. At the hearing the Veteran reported that he had the same problem with his plantar fasciitis, extreme pain, as in 2013. In March 2015, December 2015, July 2016 and October 2016 the Veteran had mild pain to palpation of the medial midarch bilateral worse on the left. High arched foot when NWB with high FF varus. Low arch and overpronated in stance. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for bilateral plantar fasciitis under Diagnostic Code 5276. At no point during the period on appeal was disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Rather, the Veteran’s disability was characterized as mild and the Veteran’s arch supports were noted to provide at least partial improve the condition. Assignment of a 40 percent rating is not warranted under the revised rating criteria of Diagnostic Code 5269 as there is no evidence at any time during the appeal period that the Veteran’s plantar fasciitis equates to actual loss of use of the foot. The Board has also considered the other Diagnostic Codes pertaining to the foot because the specific diagnostic code for plantar fasciitis became effective during the course of the appeal. Prior to the revised criteria, the Veteran’s disability is unlisted and was rated by analogy. In this regard, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282, and 5283 are not applicable. Notably, upon examination the Veteran was noted to not have Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, acquired pes cavus, malunion/nonunion of tarsal/metatarsal bones, foot injuries, arthritis, or inflammatory conditions. In conclusion, the Board finds that the preponderance of the evidence is a rating in excess of 30 percent for bilateral plantar fasciitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to a compensable initial evaluation, for the period prior to March 28, 2016, and in excess of 10 percent thereafter, for GERD. The Veteran contends that his GERD is more severe than currently evaluated. The Veteran’s GERD is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Hyphenated diagnostic codes are used when an unlisted disability is at issue or when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran’s GERD is entitled to a 10 percent evaluation, and no higher, for the entire period on appeal. The Veteran was afforded a VA examination in January 2013. The Veteran was diagnosed with GERD and hiatal hernia. His condition’s treatment included taking continuous medication. He had symptoms of pyrosis and reflux. Symptoms of epigastric distress, dysphagia, regurgitation, substernal arm or shoulder pain, sleep disturbance caused by esophageal reflux, anemia, weight loss, nausea, vomiting, hematemesis, and melena were not identified. The Veteran did not have esophageal stricture, spasm or diverticula. There were no other findings, complications, conditions, signs and/or symptoms. Upper gastrointestinal radiographic studies showed the presence of a small sliding hiatal hernia. There was no evidence of gastroesophageal reflux and no evidence of active peptic ulcer disease. CBC showed hemoglobin of 16.0, hematocrit of 46.3, white blood cell count of 8.5 and platelets of 186. The Veteran’s conditions did not impact his ability to work. The Veteran was afforded a VA esophageal examination in March 2016. The Veteran was diagnosed with hiatal hernia and GERD. He reported retrosternal burning and reflux of stomach acid. He was not having any swallowing problems or sleep problems. He took medication to treat the disability. The Veteran had symptoms of persistently recurrent epigastric distress, pyrosis, reflux, and substernal pain. There were no symptoms that were productive of considerable or severe impairment of health, dysphagia, regurgitation, nausea, vomiting, hematemesis, and melena. There was no esophageal stricture, spasm of esophagus, or acquired diverticulum of the esophagus. The Veteran’s esophageal conditions did not impact his ability to work. At the hearing Veteran reported that he had acid reflux two to three times a week, even with medication, in 2013. It was reported that the Veteran had daytime regurgitation. In December 2017, January 2019, May 2019, and August 2019 the Veteran denied dysphagia, nausea and vomiting. In August 2018 the Veteran reported a two-day history of nausea/vomiting. In a September 2019 psychiatric note the Veteran reported nausea and vomiting in the morning. However, in October 2019 the Veteran reported that he had intermittent nausea and vomiting for the prior several months and that this began after he was started on metformin and attributed his symptoms to the medication. Entitlement to an evaluation of 10 percent, and no higher, is warranted during the entire period on appeal. During the period on appeal prior to March 2016, the Veteran’s GERD was noted to manifest symptoms of pyrosis and regurgitation. Thereafter, in March 2016, the Veteran’s disability was noted to show retrosternal burning and reflux. He also was noted to have symptoms of persistently recurrent epigastric distress, pyrosis, reflux, and substernal pain. At the hearing before the undersigned, the Veteran reported that he had acid reflux two to three times a week and that this happened back in 2013. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Affording the Veteran the benefit of the doubt, the Veteran’s symptoms more nearly approximate the criteria for an evaluation of 10 percent for the entire period on appeal. A higher 30 percent rating under Diagnostic Code 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In March 2016 the Veteran was noted to have persistently recurrent epigastric distress, pyrosis, reflux, and substernal pain. However, during the period on appeal, the Veteran did not manifest symptoms that were productive of considerable or severe impairment of health, dysphagia, hematemesis, or melena. Therefore, an evaluation in excess of 10 percent is not warranted for any time during the appeal period. 7. Entitlement to a compensable initial evaluation for tension headaches. The Veteran essentially contends that his headaches are more severe than currently evaluated. The Veteran’s headache disability is currently evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when an unlisted disability is at issue or when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase characteristic prostrating attacks was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase very frequent connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id. The Board concludes that the criteria for a compensable rating under Diagnostic Code 8100 are not met or more closely approximated at any time during the appeal period. On VA headache examination in January 2013, the Veteran was diagnosed with tension headaches. He took medication for his headache disability (Tylenol). He experienced pain on both sides of the head. He did not experience non-headache symptoms associated with his headaches, such as nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The duration of typical headache pain was less than one day. He did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran’s headache disability did not impact his ability to work. In March 2015 the Veteran was noted to take ASA for headache pain. On VA headache examination in March 2016, the diagnosis was tension headaches. The Veteran described headache which occurred approximately 1 to 2 times per week and lasted for 2 to 3 hours. He described a tightness sensation from his posterior cervical area up towards his parietal-occipital area and describes some sensation of bandlike tightness. He took medications to treat the headaches. He had constant head pain and pain on both sides of the head. He did not experience non-headache symptoms associated with headaches including nausea, vomiting, sensitivity to light, sensitivity to light, sensitivity to sounds, changes in vision, and sensory changes. The duration of typical head pain was less than one day. There were no characteristic prostrating attacks of migraine or non-migraine headache pain. The headaches impaired the Veteran’s ability to work during the time he was having a headache. It was unlikely that he could do anything more than sedentary work not involving any significant concentration skills. Neurological examination was normal including reflexes. At the hearing it was noted that the Veteran had headaches two to three times a week where he has to go and shut off the lights or get into bed. The headaches lasted about an hour. The Board concludes that the symptoms of the Veteran’s headaches do not more closely approximate the criteria for a compensable rating under Diagnostic Code 8100. The 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. On examination the Veteran was not noted to have any prostrating attacks of headache pain. Post-service treatment records do not show a complaint of prostrating attacks of headache pain. It is acknowledged that the Veteran reported at his hearing in September 2019 that he has headaches two to three times a week that last about an hour and that he has to shut off the lights or get into bed. In addition, the Veteran contends that he was not asked any questions regarding his headaches at his March 2016 examination. However, contemporaneous treatment records do show complaints of headaches with prostrating episodes. Thus, the Board concludes that the Veteran’s migraines did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period. A compensable rating under Diagnostic Code 8100 is not warranted. 8. Entitlement to a TDIU. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran meets the schedular criteria for an award of TDIU during the entire period on appeal. See 38 C.F.R. § 4.16 (a). Beginning October 23, 2014, the Veteran is in receipt of a combined 100 percent schedular evaluation. Before October 23, 2014, the Veteran's orthopedic disabilities (right and left ankle tenosynovitis, right and left rotator cuff syndrome, right and left wrist tenosynovitis, lumbar spine osteoarthritis and IVDS, right and left elbow lateral epicondylitis, and right and left knee disabilities), treated as a single disability for the purposes of TDIU, had an evaluation in excess of 40 percent and the Veteran had additional service-connected disabilities bringing the combined disability rating to 70 percent or greater. See 38 C.F.R. §§ 4.16 (a), 4.25. The question for the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during the period when he is not already in receipt of a total evaluation. The Board finds that he is not and entitlement to TDIU is denied. Prior to October 23, 2014, in January 2014 the Veteran was noted to be actively seeking employment and had been utilizing resources at local One Stop. Prior to October 23, 2014, the Veteran’s knee disabilities, GERD, and headaches were noted to not impact the Veteran’s ability to work. During this time period the Veteran’s spine condition was noted to impact his ability to work by limiting lifting and bending as well as standing for long periods of time. His foot disability impacted his ability to work because it limited standing and walking for long periods of time. Pursuant to the Board’s remand directives, the Veteran was asked to complete and provided with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran has not completed document. Although the Veteran was not employed prior to October 23, 2014, the preponderance of the evidence does not indicate that the Veteran was unemployable as a result of his service-connected disabilities prior to that date. Although he expressed some concerns about his ability to work in February 2015, during the period prior to October 23, 2014, the Veteran reported that he was actively seeking employment during that time period. The Veteran has not responded to a request for additional information. As such, the Board finds that the Veteran is not unemployable during the period prior to October 23, 2014, and the claim is denied. As noted above, beginning October 23, 2014, the Veteran is in receipt of a combined 100 percent evaluation for his service connected disabilities; therefore, entitlement to TDIU as of that date is not for consideration. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.