Citation Nr: 21012079 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-34 581A DATE: March 3, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) is denied. A rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) and degenerative arthritis for the period from January 1, 2014 to December 20, 2019 is denied. A rating in excess of 20 percent for lumbar spine DDD and degenerative arthritis for the period from December 20, 2019 is denied. A rating in excess of 10 percent for cervical spine DDD and degenerative arthritis for the period from January 1, 2014 to December 20, 2019 is denied. A rating in excess of 20 percent for cervical spine DDD and degenerative arthritis for the period from December 20, 2019 is denied. A rating in excess of 20 percent for left shoulder labial tear is denied. A 20 percent rating for status post meniscal tear surgical repair of the left knee is granted. A 20 percent rating for right knee osteoarthritis, status post torn meniscus repair is granted. FINDINGS OF FACT 1. The service-connected PTSD and TBI is shown to most nearly approximate occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. 2. Prior to December 20, 2019, the DDD and degenerative arthritis of the lumbar spine is productive of forward flexion at most limited to 70 degrees with guarding and/or muscle spasm that does not result in abnormal gait or spinal contour. 3. Beginning December 20, 2019, pain and lack of endurance significantly limit functional ability during flareups and the DDD and degenerative arthritis of the lumbar spine most nearly approximates forward flexion to 50 degrees. 4. Prior to December 20, 2019, the DDD and degenerative arthritis of the cervical spine is productive of forward flexion at most limited to 45 degrees with guarding and/or muscle spasm that does not result in abnormal gait or spinal contour. 5. Beginning December 20, 2019, pain and lack of endurance significantly limit functional ability during flareups and the DDD and degenerative arthritis of the cervical spine most nearly approximates forward flexion to 25 degrees. 6. The most probative evidence establishes that the Veteran had flexion of the left shoulder limited to at most 100 degrees and abduction of the left shoulder limited to at most 100 degrees. 7. The status post meniscal tear surgical repair of the left knee disability is manifested by frequent episodes of pain. 8. The right knee osteoarthritis, status post torn meniscus repair disability is manifested by frequent episodes of pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD and TBI have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 10 percent for lumbar spine DDD and degenerative arthritis for the period from January 1, 2014 to December 20, 2019 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 3. The criteria for entitlement to a rating in excess of 20 percent for lumbar spine DDD and degenerative arthritis for the period from December 20, 2019 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 4. The criteria for entitlement to a rating in excess of 10 percent for cervical spine DDD and degenerative arthritis for the period from January 1, 2014 to December 20, 2019 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 5. The criteria for entitlement to a rating in excess of 20 percent for cervical spine DDD and degenerative arthritis for the period from December 20, 2019 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 6. The criteria for entitlement to a rating in excess of 20 percent for left shoulder labial tear have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5201. 7. The criteria for the assignment of a 20 percent rating for status post meniscal tear surgical repair of the left knee have been. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5258. 8. The criteria for the assignment of a 20 percent rating for right knee osteoarthritis, status post torn meniscus repair have been. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 2013. The Veteran has been assigned a total rating based on individual unemployability due to service-connected disability (TDIU) since January 1, 2014 (day following his separation from service). These matters came before the Board of Veterans’ Appeals (Board) on appeal from March and April 2014 rating decisions issued by the RO. The Board remanded the appeal in April 2019 for further development. In pertinent part, the Board instructed the RO to schedule the Veteran for examination to evaluate the severity of his service-connected disabilities. The Veteran underwent PTSD, TBI, lumbar spine, cervical spine, left shoulder and knee examinations in December 2019. Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. As to these claims for increased ratings for his PTSD and TBI, lumbar spine, cervical spine, left shoulder and left and right knee disabilities, the Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities and their ratings are listed in Diagnostic Codes (DCs). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 50 percent for PTSD and TBI The rating for the Veteran’s PTSD has been assigned pursuant to Diagnostic Code 9411 with reference to a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The examiner’s assessment of the severity of a condition is not dispositive of the evaluation issue; rather, the examiner’s assessment must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Additionally, ratings for TBI are assigned pursuant to Diagnostic Code 8045. See 38 C.F.R. § 4.124a. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Id. 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to 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 a Traumatic Brain Injury Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified.” VA is to 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 in 38 C.F.R. § 4.124a, Diagnostic Code 8045 that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Diagnostic Code 8045 instructs that VA should 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. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury 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, 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. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid 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. The September 2013 report of VA TBI examination documents that the Veteran had a complaint of mild memory loss; normal judgment; occasionally inappropriate social interaction; was always oriented to person time, place and situation; normal motor activity; normal visual spatial orientation; three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living or work, family or other close relationships; one or more neurobehavior effects that do not interfere with workplace interaction or social interaction; was able to communicate by spoken and written language; and, normal consciousness. A September 2013 report of VA PTSD examination documents the psychologist’s assessment that it was not possible to differentiate which symptoms were attributable to the PTSD and TBI. The psychologist determined that the Veteran’s PTSD and TBI was productive of occupational and social impairment with reduced reliability and productivity. The Veteran was retiring from the Marine Corps and planned to start working on his master’s degree ((he had a Bachelor of Science (BS) degree)). He was casually dressed; well groomed; fully alerted; and oriented. He maintained good eye contact and was cooperative throughout the examination. Expressive speech was fluent and thought processes were logical, coherent and goal directed with no evidence of a formal thought disorder. Content of thought was appropriate to context with no evidence of perceptual disturbance or delusional thinking. Insight and judgment were intact. His mood was anxious with a normal range of affect that was congruent to his mood. He denied suicidal or homicidal ideation, intent or plan. When he thought about his military experiences, he became anxious and his heart would begin pounding and he would have to focus on slowing down his breathing. He reported distressing dreams of combat and a recurring dream of not being able to locate his grenades in a combat situation. His wife told him that he wakes up violently looking for his grenades. He had pushed and kicked his wife unintentionally during the night of if woken up abruptly. He tried to avoid thinking about his military experiences and did not discuss them except with other Marines he served with. When he spoke with other Marines about his experiences, he noticed his heart rate would increase and he would try to control his breathing and relax. He avoided driving in heavy traffic and tried to drive in the far right or left lanes so that he had an escape route. He did not have a lot of close friends because he did not trust anybody. He had trouble falling and staying asleep. He had trouble concentrating and became distracted easily, especially if doing something that was not interesting to him. He was able to concentrate on material he found interesting. He completed his BS in psychology in 2010 and did well academically. He was easily irritated and would kickbox to relieve his anger. He noticed that his concentration and attention had seemed to decline over the years and on occasion he would forget what he was saying. Symptoms of his PTSD and TBI included anxiety, suspiciousness, chronic sleep impairment, mild memory loss and difficulty in establishing and maintaining effective work and social relationships. The December 2016 report of VA TBI examination documents that the Veteran had objective evidence on testing of mild impairment of memory, attention concentration or executive functions resulting in mild functional impairment. His judgment was normal; his social interaction was routinely appropriate; and he was always oriented to person, time, place and situation. Motor activity was mildly decreased or with moderate slowing due to apraxia, but visual spatial orientation was normal. He had three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships and one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction or both but did not preclude them. He was able to communicate by spoken and written language and to comprehend spoken and written language and his consciousness was normal. The December 2016 report of VA PTSD examination documents diagnoses of PTSD and mild neurocognitive disorder due to TBI. The psychologist indicated that it was possible to differentiate what symptoms were attributable to each diagnosis, explaining that the two diagnoses share clinical overlap; however, PTSD symptoms were related to re-experiencing, arousal, avoidance and negative affect upon exposure to trauma related cues, memories and images. TBI residuals overlap with regard to negative affect. Other symptoms included difficulty with moodiness, forgetfulness, dizziness, vertigo, nausea, poor balance, tinnitus, migraines and light and sound sensitivity. The psychologist determined that the Veteran’s PTSD and TBI was productive of occupational and social impairment with reduced reliability and productivity and explained that it was not possible to differentiate what portion of the occupational and social impairment was caused by each disorder. The Veteran was married and had an adult son and two grandchildren. He reported that he was actively involved in his grandchildren’s lives. He had been married for 29 years and described the marriage as very strong because he had a supportive wife who had been incredibly patient dealing with his “issues.” He graduated from college with a BS in social psychology. He complained of intrusive memories regarding kills in combat and reported that he killed enemy combatants at point blank range and then took his finger and flicked their eyelids to make certain they were deceased. He reported he had periods of road rage and recklessness while riding a bike which led to a serious shoulder injury. He was “cautious and alert when he was in department stores and was hypervigilant and had an exaggerated startle response. He complained of difficulty with moodiness, forgetfulness, dizziness, vertigo, nausea, poor balance, tinnitus, migraines and light and sound sensitivity. He had a recorder and reported that he could not remember anything without recording. He had periods of anger towards his wife and others as his temper could be explosive, “can go from zero to sixty quickly.” He was angry often and was easily provoked by “stupid people.” Symptoms of his PTSD and TBI included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, disturbance of motivation and mood and difficulty in adapting to stressful circumstances. The Veteran was casually dressed and evidenced psychomotor agitation as he was shifting in his chair and was uncertain whether he would have to discuss traumatic events. He was initially guarded and combative but became more cooperative and the evaluation progressed. His speech was loud and fast, but he was logical and goal directed. He initially exhibited angry affect but described his mood as “fine.” It was the psychologist’s impression that the Veteran was quite anxious. The December 2019 report of VA TBI examination documents that the Veteran had objective evidence on testing of mild impairment of memory, attention concentration or executive functions resulting in mild functional impairment. His judgment was normal; his social interaction was occasionally inappropriate; and, he was always oriented to person, time, place and situation. Motor activity and visual spatial orientation were normal. He had three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships and one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction or both but did not preclude them. He was able to communicate by spoken and written language and to comprehend spoken and written language and his consciousness was normal. The psychiatrist remarked that the Veteran’s PTSD and mild neurocognitive disorder due to TBI caused the Veteran to have occupational and social impairment with reduced reliability and productivity. The psychiatrist reported that the Veteran had hypervigilance, dissociative symptoms, avoidance triggers, irritability, suspiciousness with distrust of others, short-term memory difficulties, attention disturbance and anxiety that cause difficulty adapting to stressful circumstances. Additionally, the Veteran had TBI with residual tinnitus and light hypersensitivity that triggered headaches. The psychiatrist concluded that due to the comorbid and co-occurring nature of his PTSD and mild neurocognitive disorder due to TBI, it was not possible to differentiate what symptoms or which disorder caused the impairment. The December 2019 report of VA PTSD examination documents diagnoses of PTSD and mild neurocognitive disorder due to TBI. The psychiatrist indicated that it was possible to differentiate what symptoms were attributable to each diagnosis, explaining that the Veteran had problems with hypervigilance, suspiciousness, dissociative reactions, distrust of others, emotional/psychological distress, physiological manifestations of distress, irritable behaviors and avoidance due to his PTSD. The Veteran’s subjective and objective findings of memory and concentration difficulties were attributable to the Veteran’s mild neurocognitive disorder due to TBI. The psychiatrist explained that because the Veteran was exposed to psychologically traumatizing events and numerous head injuries and blast exposures during his military service, there was an association between his PTSD and mild neurocognitive disorder due to TBI. The psychiatrist determined that the Veteran’s PTSD and TBI were productive of occupational and social impairment with reduced reliability and productivity and indicated that it was not possible to differentiate what portion of the occupational and social impairment was caused by each disorder, explaining that the Veteran’s PTSD and mild neurocognitive disorder due to TBI were both active and concurrent conditions that both contribute to the Veteran’s overall impairment in function. The Veteran was married (since 1989) and had an adult son who was a NASA engineer. He graduated from college in 2010 with a BS in psychology. He retired from military service in 2013 and had not worked since. Symptoms of his PTSD and TBI included anxiety, suspiciousness, mild memory loss, impairment of short- and long-term memory and difficulty in adapting to stressful circumstances. The Veteran had an intense affect and spoke with irritable tone and loud voice. He was cooperative and polite throughout the interview. He spoke quickly and displayed some degree of verbal impulsivity but was able to be interrupted and redirected. He had animated gesticulations. He avoided bright lights and requested to have the blinds closed and lights dimmed for his comfort during the examination. The Veteran complained of frustration about his memory problems and reported that he had a “short fuse.” He reported that he was told by his wife that he had troubles interacting with others because he was perceived as coming across as aggressive and irritable even when he is not intending to express irritability. He acknowledged that he had a low tolerance for “incompetence” and got frustrated when sees others acting in ways that he believes illustrates incompetence. The psychiatrist remarked that the Veteran’s PTSD and mild neurocognitive disorder due to TBI caused the Veteran to have occupational and social impairment with reduced reliability and productivity. The psychiatrist reported that the Veteran had hypervigilance, dissociative symptoms, avoidance triggers, irritability, suspiciousness with distrust of others, short-term memory difficulties, attention disturbance and anxiety that cause difficulty adapting to stressful circumstances. Those symptoms interfered with the Veteran’s ability to work effectively with others in civilian settings that required a more diplomatic management style other than the structured and direct style of leadership that he thrived in over the course of his military service. The psychiatrist concluded that the Veteran had difficulties coping with stress related to PTSD symptoms and cognitive changes that interfered with his ability to work at his premorbid level of reliability and productivity. The frequency, severity and duration of his psychiatric symptoms were characterized by manifestations and effects such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships and impairment of short- and long-term memory – adequately contemplated by the 50 percent rating. The Veteran exhibited PTSD and TBI productive of occupational and social impairment with reduced reliability and productivity. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The preponderance of the evidence is therefore against the assignment of the already assigned 50 percent rating. As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed in the diagnostic code are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” In the context of determining whether a higher 70 percent disability evaluation is warranted, the DC requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships —i.e., “the regulation... requires an ultimate factual conclusion as to the veteran’s level of impairment …” Vazquez-Claudio, 713 F.3d at 117–18; see 38 C.F.R. § 4.130, DC 9411. The preponderance of the evidence is against finding that the Veteran’s PTSD and TBI caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships, particularly given the fact that the Veteran has not demonstrated severe impairment even though he did exhibit a symptom (difficulty in adapting to stressful circumstances) listed in the exemplar criteria for a 70 percent rating. The Veteran had been married since 1989 had an adult son and two grandchildren. He reported that he was actively involved in his grandchildren’s lives. He described the marriage as very strong because he had a supportive wife who had been incredibly patient with him. Though he had not worked since military retirement in 2013, he was a college graduate and had a BS in psychology. Mental status examination in September 2013 showed that he was casually dressed; well groomed; fully alerted; and oriented. He maintained good eye contact and was cooperative throughout the examination. Expressive speech was fluent and thought processes were logical, coherent and goal directed with no evidence of a formal thought disorder. Content of thought was appropriate to context with no evidence of perceptual disturbance or delusional thinking. Insight and judgment were intact. His mood was anxious with a normal range of affect that was congruent to his mood. He denied suicidal or homicidal ideation, intent or plan. Mental status examination in December 2016 showed that he was casually dressed and evidenced psychomotor agitation. He was initially guarded and combative but became more cooperative and the evaluation progressed. His speech was loud and fast, but he was logical and goal directed. He initially exhibited angry affect but described his mood as “fine.” It was the psychologist’s impression that the Veteran was quite anxious. In December 2019, mental status examination showed the Veteran had an intense affect and spoke with irritable tone and loud voice. He was cooperative and polite throughout the interview. He spoke quickly and displayed some degree of verbal impulsivity but was able to be interrupted and redirected. He had animated gesticulations. He avoided bright lights and requested to have the blinds closed and lights dimmed for his comfort during the examination. There had not been shown current suicidal ideation; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships. Thus, the Veteran did not demonstrate occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. In short, the Veteran did not have the constellation of symptoms indicative of the more severe disability. As the evidence documented above indicates that PTSD and mild neurocognitive disorder due to TBI clinically overlap and it was impossible to differentiate what portion of the occupational and social impairment was caused by each disorder because both disorders contribute to the Veteran’s overall impairment in function, a separate disability rating for residuals of TBI for neurobehavioral effects is not warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Moreover, at most the Veteran demonstrated a 2 in level of impairment for residuals of TBI (See December 2016 report of VA TBI examination documenting that motor activity was mildly decreased or with moderate slowing due to apraxia and he had three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships). Thus, a rating in excess of 50 percent is not warranted under criteria contemplating residuals of TBI. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. For these reasons, the Board finds that a rating in excess of 50 percent is not warranted for PTSD and TBI. 2. Entitlement to ratings in excess of 10 percent for lumbar spine and cervical spine DDD and degenerative arthritis for the period from January 1, 2014 to December 20, 2019 and ratings in excess of 20 percent for lumbar spine and cervical spine DDD and degenerative arthritis for the period from December 20, 2019 Service connection for lumbar spine and cervical spine DDD and degenerative arthritis was granted in a March 2014 rating decision and the RO assigned 10 percent rating, respectively, effective January 1, 2014. In September 2020, the RO granted increased 20 percent ratings for the Veteran’s lumbar spine and cervical spine DDD and degenerative arthritis, respectively, effective December 20, 2019. As higher schedular ratings for the lumbar spine and cervical spine DDD and degenerative arthritis are possible both prior to and after December 20, 2019, and the Veteran has not withdrawn the appeal the claims remain before the Board on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The criteria for evaluating disabilities of the musculoskeletal system have been revised during the pendency of this appeal. Prior to February 7, 2021, the criteria for rating the Veteran’s DDD and degenerative arthritis of the lumbar spine and cervical spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combine 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 the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 30 percent evaluation is warranted forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is in order for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned 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, Diagnostic Code 5242 (2017). In addition to the Spine Formula, VA’s regulations contain a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Ratings under this diagnostic code are assigned according to the duration of “incapacitating episodes” throughout the year due to IVDS. An “incapacitating episode” is defined 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. Id. Pertinent to the current appeal, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Effective February 7, 2021, evaluation of the Veteran’s DDD and degenerative arthritis of the lumbar spine and cervical spine under Diagnostic Code 5242 is for application and provides that degenerative arthritis and DDD other than IVDS is evaluated using the rating criteria set forth the General Rating Formula for Diseases and Injuries of the Spine documented above. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The September 2013 report of VA neck (cervical spine) examination documents the Veteran’s complaint of chronic neck pain. The Veteran reported that he had limited range of motion turning his neck to the left or right but was unsure of the degrees of range of motion. He complained that he experienced shooting pains in his neck and a dull, throbbing, constant pain. Flexeril and Voltaren provided some relief. He reported that he experienced flareups of pain every couple of weeks that lasted a few days at a time. During the flareups he could not move his head. He had limited range of motion, mostly with lateral rotation of the neck to the right or left due to the pain. On physical examination, the Veteran’s cervical spine range of motion was flexion to 45 degrees (with objective evidence of painful motion at 45 degrees); extension to 45 degrees (with objective evidence of painful motion at 45 degrees); left lateral flexion to 15 degrees (with objective evidence of painful motion at 15 degrees); left rotation to 50 degrees (with objective evidence of painful motion at 50 degrees); right lateral flexion to 15 degrees (with objective evidence of painful motion at 15 degrees), and right rotation to 50 degrees (with objective evidence of painful motion at 50 degrees). The Veteran had no additional limitation of motion with repetitive use. He had no localized tenderness or pain to palpation for the joints/soft tissue of the cervical spine and no guarding or muscle spasm. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have intervertebral disc syndrome (IVDS) of the cervical spine. X-ray findings showed arthritis and MRI findings showed no abnormal cord signal intensity; probable hemangioma in C6; and, mild degenerative changes at C5-C7 and L2-L5. The September 2013 report of VA back (thoracolumbar spine) examination documents the Veteran’s complaint of worsening, chronic pain, worse with prolonged sitting. He reported that he experienced flareups of pain with prolonged sitting approximately once per week that lasted hours to days. Flexeril provided relief. He could not perform repetitive movements such as bending that required him to bend longer than a few minutes due to pain and could not lift heavy objects. He was unable to estimate any degrees of limited range of motion in his lower back due to pain, fatigue, weakness or incoordination. On physical examination, the Veteran’s thoracolumbar spine range of motion was flexion to 90 degrees (with objective evidence of painful motion at 80 degrees); extension to 20 degrees (with objective evidence of painful motion at 20 degrees); right lateral flexion to 30 degrees (with objective evidence of painful motion at 20 degrees); left lateral flexion to 25 degrees (with objective evidence of painful motion at 20 degrees); right rotation to 25 degrees (with objective evidence of painful motion at 20 degrees); and, left rotation to 25 degrees (with objective evidence of painful motion at 20 degrees). The Veteran had no additional limitation of motion with repetitive use. He had no localized tenderness or pain to palpation for the joints/soft tissue of the thoracolumbar spine and no guarding or muscle spasm. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have IVDS of the thoracolumbar spine. X-ray findings showed arthritis and MRI findings showed mild to moderate multilevel facet degenerative change with mild L4-L5 foraminal narrowing. The October 2013 report of VA neck (cervical spine) examination documents the Veteran’s complaint of neck pain that radiated to the trapezius area, especially on the right. On physical examination, the Veteran’s cervical spine range of motion was flexion to 45 degrees (with no objective evidence of painful motion); extension to 30 degrees (with objective evidence of painful motion at 30 degrees); right lateral flexion to 40 degrees (with no objective evidence of painful motion); left lateral flexion to 40 degrees (with no objective evidence of painful motion); right rotation to 40 degrees (with objective evidence of painful motion at 40 degrees); and, left rotation to 60 degrees (with objective evidence of painful motion at 60 degrees). The Veteran had no additional limitation of motion with repetitive use. He experienced tenderness or pain to palpation for joints/soft tissue of the cervical spine and had guarding or muscle spasm that did not result in abnormal gait or spinal contour. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have incapacitating episodes of IVDS of the cervical spine over the past year that required physician prescribed bed rest. The October 2013 report of VA back (thoracolumbar spine) examination documents the Veteran’s complaint chronic back pain. Prolonged walking caused pain as did remaining in any position for a prolonged period. On physical examination, the Veteran’s thoracolumbar spine range of motion was flexion to 70 degrees (with objective evidence of painful motion at 70 degrees); extension to 25 degrees (with objective evidence of painful motion at 25 degrees); right lateral flexion to 25 degrees (with no objective evidence of painful motion); left lateral flexion to 25 degrees (with no objective evidence of painful motion); right rotation to 25 degrees (with no objective evidence of painful motion); and, left rotation to 25 degrees (with no objective evidence of painful motion). The Veteran had no additional limitation of motion with repetitive use. He experienced pain in the paraspinal muscles of the lumbar spine and guarding and/or muscle spasm that did not result in abnormal gait or spinal contour. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. He did not have IVDS of the thoracolumbar spine. The December 2016 report of VA neck (cervical spine) examination documents the Veteran’s complaint of neck pain, stiffness and lack of mobility that limited his activities of daily living. On physical examination, the Veteran’s cervical spine range of motion was flexion to 45 degrees; extension to 45 degrees; right lateral flexion to 45 degrees; left lateral flexion to 45 degrees; right rotation to 80; and, left rotation to 80 degrees. Pain was noted on examination but did not result in/cause functional loss. There was evidence of pain with weight bearing. He was able to perform repetitive use testing without additional loss of function or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. As the Veteran was not examined during a flareup, the examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flareups without resort to speculation. He did not have localized tenderness, guarding or muscle spasm of the cervical spine. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of cervical spine ankylosis. He did not have IVDS of the cervical spine. The December 2016 report of VA back (thoracolumbar spine) examination documents the Veteran’s complaint of flareups of back pain with driving a car, sitting, standing and activities of daily living. On physical examination, the Veteran’s cervical spine range of motion was flexion to 75 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 30; and, left rotation to 20 degrees. Pain was noted on examination caused functional loss. There was evidence of pain with weight bearing. He was able to perform repetitive use testing without additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time and during a flareup but did not result in additional loss of range of motion of the thoracolumbar spine. He did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of thoracolumbar spine ankylosis. He did not have IVDS of the cervical spine. The December 2019 report of VA neck (cervical spine) examination documents the Veteran’s complaint of worsening neck pain and stiffness. He reported that he experienced weekly flareups of neck pain of moderate severity. His flareups of neck pain lasted anywhere from a few minutes to several hours. Flareups of the neck pain were precipitated by repetitive movement of the neck and alleviated by rest. On physical examination, the Veteran’s cervical spine range of motion was flexion to 40 degrees; extension to 40 degrees; right lateral flexion to 40 degrees; left lateral flexion to 40 degrees; right rotation to 60; and, left rotation to 60 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. On repetitive use testing, the Veteran’s cervical spine range of motion was flexion to 35 degrees; extension to 35 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right rotation to 55; and, left rotation to 55 degrees. Pain and lack of endurance significantly limited functional ability with repeated use over time with flexion of the cervical spine limited to 30 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 50; and, left rotation to 50 degrees. Pain and lack of endurance significantly limited functional ability during flareups with flexion of the cervical spine limited to 25 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right rotation to 45; and, left rotation to 45 degrees. He did not have localized tenderness, guarding or muscle spasm of the cervical spine. Muscle strength, reflex and sensory examinations were all normal. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of cervical spine ankylosis. He did not have IVDS of the cervical spine. The examiner commented there was objective evidence of pain on passive range of motion of the neck and objective evidence of pain on non-weight bearing testing of the neck. The December 2019 report of VA back (thoracolumbar spine) examination documents the Veteran’s complaint of worsening back pain and stiffness. He reported that he experienced weekly flareups of back pain of moderate severity. His flareups of back pain lasted several hours. Flareups of the back pain were precipitated by lifting objects and prolonged walking and alleviated by rest. On physical examination, the Veteran’s thoracolumbar spine range of motion was flexion to 75 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right rotation to 25; and, left rotation to 25 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing. On repetitive use testing, the Veteran’s thoracolumbar spine range of motion was flexion to 70 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right rotation to 20; and, left rotation to 20 degrees. Pain and lack of endurance significantly limited functional ability with repeated use over time with flexion of the thoracolumbar spine limited to 60 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right rotation to 15; and, left rotation to 15 degrees. Pain and lack of endurance significantly limited functional ability during flareups with flexion of the thoracolumbar spine limited to 50 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right rotation to 10; and, left rotation to 10 degrees. He did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex and sensory examinations were all normal. Moderate radiculopathy of the right lower extremity involving the sciatic nerve was documented. There was no evidence of thoracolumbar spine ankylosis. He had not experienced any incapacitating episodes of IVDS of the thoracolumbar spine in the past year that had required physician prescribed bed rest. The examiner commented there was objective evidence of pain on passive range of motion of the neck and objective evidence of pain on non-weight bearing testing of the neck. From January 1, 2014 to December 20, 2019, the Veteran’s cervical spine disability was productive of flexion at most limited to 45 degrees with tenderness or pain to palpation for joints/soft tissue of the cervical spine and guarding or muscle spasm that did not result in abnormal gait or spinal contour (see October 2013 report of VA cervical spine examination). His thoracolumbar spine disability was productive of flexion at most limited to 70 degrees with tenderness or pain to palpation for joints/soft tissue of the thoracolumbar spine and guarding or muscle spasm that did not result in abnormal gait or spinal contour (see October 2013 report of VA thoracolumbar spine examination). Such findings are adequately contemplated by the assigned 10 percent ratings. In addition, the manifestations that can be associated with the cervical and thoracolumbar spine disabilities - even after considering DeLuca (orthopedic) factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees prior to December 20, 2019. There is no evidence of cervical or thoracolumbar spine ankylosis and the Veteran is not shown to have experienced IVDS of the cervical spine. Thus, ratings in excess of 10 percent based on ankylosis and incapacitating episodes are not warranted for the lumbar spine and cervical spine DDD and degenerative arthritis for the period from January 1, 2014 to December 20, 2019. Further, the examinations documented above reflect that prior to December 20, 2019, the Veteran did not experience additional functional loss or limitation of motion with repetitive use and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or during flare-up. Though the December 2016 report of VA examination reflect that there was evidence of pain with weight bearing, the Board reiterates that the Veteran did not experience additional functional loss or limitation of motion with repetitive use and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or during flare-up. Accordingly, ratings in excess of 10 percent for the lumbar spine and cervical spine DDD and degenerative arthritis are not warranted for the period from January 1, 2014 to December 20, 2019. The 10 percent ratings for the lumbar spine and cervical spine DDD and degenerative arthritis for the period prior to December 20, 2019, adequately contemplate the severity of his disabilities. Effective December 20, 2019, pain and lack of endurance significantly limit functional ability during flareups and the DDD and degenerative arthritis of the cervical spine most nearly approximates forward flexion to 25 degrees (see December 2019 report of VA cervical spine examination). Similarly, pain and lack of endurance significantly limit functional ability during flareups and the DDD and degenerative arthritis of the lumbar spine most nearly approximates forward flexion to 50 degrees (see December 2019 report of VA thoracolumbar spine examination). In addition, the manifestations that can be associated with the cervical spine disability - even after considering DeLuca (orthopedic) factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the cervical spine 15 degrees or less or forward flexion of the thoracolumbar spine 30 degrees or less. There is no evidence of cervical spine or thoracolumbar spine ankylosis, and the Veteran is not shown to have experienced incapacitating episodes of IVDS of the cervical spine or thoracolumbar spine that requires physician prescribed bed rest. Thus, higher ratings based on ankylosis and incapacitating episodes are not warranted for the lumbar spine and cervical spine DDD and degenerative arthritis for the period beginning December 20, 2019. Though pain and lack of endurance significantly limited functional ability with repeated use over time (manifested by flexion of the cervical and thoracolumbar spine limited to 30 degrees and 60 degrees, respectively) and during flareups (manifested by flexion of the cervical and thoracolumbar spine limited to 25 degrees and 50 degrees, respectively), the Board reiterates that this additional limitation in functional ability and range of motion did not result in forward flexion of the cervical spine limited to 15 degrees or less or forward flexion of the thoracolumbar spine limited to 30 degrees or less. In addition, there was no evidence of pain with weight bearing. While the December 2019 reports of VA examination reflect that there was objective evidence of pain on passive range of motion of the neck and back and objective evidence of pain on non-weight bearing testing of the neck and back, there is no indication the pain on passive range of motion and on non-weight bearing resulted in additional limitation in range of motion of the cervical spine and thoracolumbar spine. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Accordingly, ratings in excess of 20 percent for lumbar spine and cervical spine DDD and degenerative arthritis for the period beginning December 20, 2019 are not warranted. The 20 percent ratings for the lumbar spine and cervical spine DDD and degenerative arthritis adequately contemplate the severity of his disabilities for the period beginning December 20, 2019. 3. Entitlement to a rating in excess of 20 percent for left shoulder labial tear The criteria for evaluating disabilities of the musculoskeletal system have been revised during the pendency of this appeal. Prior to February 7, 2021, the rating for the Veteran’s left shoulder disability has been assigned pursuant to diagnostic code (DC) 5201. Under DC 5201, a 20 percent rating contemplates limitation of motion of the arm at shoulder level (for both major and minor extremity) and midway between side and shoulder level (minor extremity). A rating of 30 percent rating requires limitation of motion of the arm midway between side and shoulder level (major extremity) and to 25 degrees from side (minor extremity). A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side (major extremity). 38 C.F.R. § 4.71a, DC 5201. Effective February 7, 2021, under DC 5201, a 20 percent rating contemplates limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) (for both major and minor extremity) and midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) (minor extremity). A rating of 30 percent rating requires limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) (major extremity) and to 25 degrees from side (minor extremity). A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side (major extremity). See 85 Fed. Reg. 76453 (Nov. 30, 2020). The October 2013 report of VA shoulder and arm conditions examination reflects the Veteran was right hand dominant. He complained of left shoulder pain with reaching and lifting. He had forward flexion to 100 degrees (with objective evidence of painful motion beginning at 100 degrees) and abduction to 120 degrees (with objective evidence of painful motion beginning at 120 degrees). He could perform repetitive use testing without additional limitation of motion. He had localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon and guarding of the left shoulder. Muscle strength testing was normal. There was evidence of ankylosis, and the examiner indicated the Veteran had abduction to 60 degrees (can’t reach mouth and head); abduction limited to between 60 and 25 degrees; and abduction limited to 25 degrees from the side in his left shoulder. Hawkins’ Impingement Test; Empty-can test; and, External rotation/Infraspinatus strength Test were all positive. Lift-off-subscapularis test was negative. There was no history of mechanical symptoms or recurrent dislocation of the glenohumeral (scapulohumeral) joint. Crank apprehension and relocation test was negative. He had no acromioclavicular (AC) joint condition or other impairment of the clavicle or scapula. The physician reported that the Veteran had no additional limitation of motion due to pain during flareups or when the joint was used repeatedly over a period of time. The December 2016 report of VA shoulder and arm conditions examination reflects the Veteran was right hand dominant. He complained of worsening, constant left shoulder pain. He reported that daily, physical activity caused pain and limited movement. He had forward flexion to 130 degrees and abduction to 100 degrees. Pain was documented on examination and caused functional loss but did not result in additional limitation of motion on repetitive use. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain significantly limited functional ability with repeated use over time and during flareups but did not cause additional limitation of motion of the left shoulder. Muscle strength testing was normal. There was no evidence of left shoulder ankylosis or a left shoulder rotator cuff condition. The examiner indicated there was a history of mechanical symptoms and frequent episodes of recurrent dislocation of the glenohumeral (scapulohumeral) joint. Crank apprehension and relocation test was negative. He had no AC joint condition or other impairment of the clavicle or scapula. He had no condition or impairment of the humerus. The December 2019 report of VA shoulder and arm conditions examination reflects the Veteran was right hand dominant. He complained of weekly flareups of moderate left shoulder pain that lasted anywhere from several minutes to several hours. The left shoulder flareups of pain were precipitated by over usage and alleviated by rest. He reported that daily, physical activity caused pain and limited movement. He had forward flexion to 160 degrees and abduction to 160 degrees. Pain was documented on examination and caused functional loss. On repetitive use testing, he had forward flexion and abduction of the left shoulder limited to 150 degrees, respectively. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain and lack of endurance significantly limited functional ability with repeated use over time and during flareups with forward flexion and abduction limited to 140 degrees (with repeated use over time) and 130 degrees (during flareups). Muscle strength testing was normal. There was no evidence of left shoulder ankylosis or a left shoulder rotator cuff condition. The examiner indicated there was a history of mechanical symptoms of the left shoulder but there was no history of recurrent dislocation of the glenohumeral (scapulohumeral) joint. Crank apprehension and relocation test was negative. He had no AC joint condition or other impairment of the clavicle or scapula. He had no condition or impairment of the humerus. The examiner remarked that there was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the left shoulder. The evidence documented above indicates that the Veteran demonstrated, at worst, forward flexion of the left shoulder to 100 degrees and abduction to 100 degrees (October 2013 and December 2016 reports of VA examination). The October 2013 report of examination documents that the Veteran has ankylosis of the left shoulder; however, degree of severity of the ankylosis is indeterminable as the examiner indicated that the ankylosis was manifested by abduction to 60 degrees (can’t reach mouth and head); abduction limited to between 60 and 25 degrees; and abduction limited to 25 degrees from the side in his left shoulder. Further, the December 2016 and December 2019 reports of VA examination reflect that the Veteran does not have ankylosis of the left shoulder. Thus, the more probative evidence shows there is no limitation of motion of the left arm to 25 degrees from side (minor extremity). Accordingly, a rating in excess of 20 percent for the left shoulder disability is not warranted prior to or after revision of the rating criteria in February 2021. As the more probative evidence establishes there is no left shoulder ankylosis and no evidence of impairment of the humerus, a higher rating based on ankylosis and impairment of the humerus is not warranted. The December 2016 report of VA examination reflects there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain significantly limited functional ability with repeated use over time and during flareups but did not cause additional limitation of motion of the left shoulder. The December 2019 report of VA examination reflects there was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain and lack of endurance significantly limited functional ability with repeated use over time and during flareups with forward flexion and abduction limited to 140 degrees (with repeated use over time) and 130 degrees (during flareups). The examiner remarked that there was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the left shoulder but did not indicate additional loss of range of motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). For these reasons, a rating in excess of 20 percent is not warranted. 4. Entitlement to ratings in excess of 10 percent for status post meniscal tear surgical repair of the left knee and right knee osteoarthritis status post torn meniscus repair. The criteria for evaluating disabilities of the musculoskeletal system have been revised effective February 7, 2021. However, ratings for knee disabilities pursuant to diagnostic codes (DC) 5260 have not been revised. Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § § 4.71a, DC 5260. The VA General Counsel has held that separate ratings under 38 C.F.R. § § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § § 4.71a, DC 5261. Separate evaluations may also be assigned for subluxation or lateral instability. See 38 C.F.R. § § 4.71a, DC 5257. The October 2013 report of VA knee and lower leg conditions examination reflects the Veteran’s complaint of both knees giving way when he came down the stairs. He had full range of motion of the knees (with no objective evidence of painful motion), bilaterally. He could perform repetitive use testing without additional limitation of motion. Joint stability tests were normal and there was no evidence of recurrent patellar subluxation/dislocation. The Veteran did have a meniscus (semilunar cartilage) condition with frequent episodes of joint pain, bilaterally. The examiner remarked there was no additional limitation of motion due to pain during flareups or when the joint is used repeatedly over a period of time. The November 2016 report of VA knee and lower leg conditions examination reflects the Veteran’s complaint of bilateral knee pain, buckling and catching. He had full extension of the right knee and flexion limited to 125 degrees. On the right knee, there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. He had full extension of the left knee and flexion limited to 130 degrees. On the left knee, there was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. He could perform repetitive use testing without additional limitation of motion. The examiner was unable to determine if pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or because there was no objective evidence. Muscle strength testing was normal and there was no evidence of ankylosis, bilaterally. Joint stability tests were normal and there was no evidence of recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did have a meniscus (semilunar cartilage) condition, bilaterally; however, the examiner indicated the Veteran had no current symptoms related thereto. April 2016 x-ray findings showed mild medial compartment osteoarthritis and small knee joint effusion of the right knee. The December 2016 report of VA knee and lower leg conditions examination reflects the Veteran’s complaint of bilateral knee pain and limited mobility post activity. He reported that activity created pain and lack of activity caused stiffness. He had full extension of the right knee and flexion limited to 105 degrees. On the right knee, there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was noted on examination and caused functional loss. There was objective evidence of crepitus. He had full extension of the left knee and flexion limited to 100 degrees. On the left knee, there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. He could perform repetitive use testing without additional limitation of motion. Pain significantly limited functional ability with repeated use over time and during flareups but did not result in additional limitation of motion. Muscle strength testing was normal and there was no evidence of ankylosis, bilaterally. Joint stability tests were normal and there was no evidence of recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did have a meniscus (semilunar cartilage) condition, bilaterally. The examiner indicated the Veteran’s knee disabilities impacted his ability to perform occupational tasks because he had pain with activity. The December 2019 report of VA knee and lower leg conditions examination reflects the Veteran’s complaint of moderate, bilateral knee pain that lasts several minutes at a time intermittently throughout the day. The knee pain was precipitated by prolonged walking, squatting and climbing stairs and alleviated by rest. He reported he had limited range of motion of the knees. He had full extension of the right knee and flexion limited to 120 degrees. On the right knee, there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was noted on examination and caused functional loss. There was objective evidence of crepitus. He had full extension of the left knee and flexion limited to 120 degrees. On the left knee, there was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was noted on examination and caused functional loss. There was objective evidence of crepitus. On repetitive use testing, he had full extension and flexion limited to 110 degrees, bilaterally. Pain and lack of endurance significantly limited functional ability with repeated use over time and during flareups with full extension and flexion limited to 100 degrees (repeated use over time) and 90 degrees (during flareups), bilaterally. Muscle strength testing was normal and there was no evidence of ankylosis, bilaterally. Joint stability tests were normal and there was no evidence of recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran did have a meniscus (semilunar cartilage) condition, bilaterally. The examiner indicated the Veteran’s knee disabilities impacted his ability to perform occupational tasks because the Veteran had difficulty with prolonged walking and climbing stairs due to pain. Here, the December 2019 report of VA examination documents that pain and lack of endurance significantly limited functional ability during flare-ups or with repeated use over time resulting in flexion of the knees limited to at most 100 degrees (repeated use over time) and 90 degrees (flare-ups), bilaterally. Even considering the additional limitation in motion documented in the December 2019 VA examination report, there is no evidence of flexion of the right or left knees limited to 30 degrees. Thus, ratings in excess of 10 percent for status post meniscal tear surgical repair of the left knee and right knee osteoarthritis, status post torn meniscus repair are not warranted under Diagnostic Code 5260. Ankylosis or tibia or fibular impairment is not demonstrated; therefore, ratings in excess of 10 percent under Diagnostic Codes 5256 and 5262 are not warranted. The reports of VA examination document that the Veteran had full extension of the right and left knees; therefore, ratings in excess of 10 percent and/or separate ratings under diagnostic code 5261 are not warranted. Right and left knee instability are not demonstrated and separate ratings for this impairment are not warranted. (Continued on the next page)   However, the October 2013 report of VA examination documents that the Veteran has a meniscus (semilunar cartilage) condition with frequent episodes of joint pain, bilaterally. The November 2016, December 2016 and December 2019 reports of VA examination confirm the Veteran has a meniscus (semilunar cartilage) condition, bilaterally. Considering his consistent reports of bilateral knee pain, 20 percent ratings are assigned for his left and right knee meniscal disabilities under Diagnostic Code 5258 throughout the period of the appeal. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.