Citation Nr: 21012362 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-08 995 DATE: March 4, 2021 ORDER Entitlement to an increased rating of 70 percent rating for PTSD as of June 1, 2007 (excluding periods of previously assigned 100 percent rating) is granted. Entitlement to an increased rating of 40 percent for a TBI is granted. Entitlement to an increased rating of 60 percent for Gastroesophageal Reflux Disease (GERD) with Barrett's esophagus, hypertrophic gastritis, and IBS is granted. Entitlement to a compensable rating for scar residuals of the left shoulder due to basal cell carcinoma is denied. Entitlement to a compensable rating for scar residuals of the left upper back due to basal cell carcinoma is denied. Entitlement to a compensable rating for scar residuals of the left arm due to basal cell carcinoma is denied. Entitlement to a compensable rating for scar residuals of the right forearm due to basal cell carcinoma is denied. Entitlement to scar residuals of the left outer thigh due to basal cell carcinoma is denied. Entitlement to a compensable rating for scar residuals of the right calf due to basal cell carcinoma is denied. Entitlement to a compensable rating for scar residuals of the head, neck, and face from June 1, 2007 to September 23, 2008 is denied; entitlement to a 30 percent rating as of September 24, 2008 is granted. Entitlement to an increased rating in excess of 20 percent for left shoulder arthritis is denied. Entitlement to a TDIU prior to April 30, 2008 is denied. Clear and unmistakable error (CUE) in the July 2009 rating decision that assigned an effective date of May 11, 2009 for service connection for a TBI is denied. REMANDED Entitlement to service connection for status post biopsy of a mouth lesion is remanded. FINDINGS OF FACT 1. Beginning June 1, 2007, the Veteran’s PTSD resulted in deficiencies in most areas, to include occupationally and socially. 2. The Veteran’s highest level of impairment for residuals of his TBI is a “2”. 3. The Veteran’s GERD, Barrett’s esophagus, hypertrophic gastritis, and IBS (digestive system disabilities) manifest in symptom combinations productive of severe impairment of health. 4. The Veteran’s residuals scars of the left shoulder, left back, left arm, right forearm, left thigh, and right calf are not painful or unstable, do not have underlying soft tissue damage, do not cover an area of 144 square inches or greater, and his skin malignancy did not require therapy that is comparable to that used for systemic malignancies. 5. The Veteran’s face, head, and neck scar residuals manifest in two to three characteristics of disfigurement which became factually ascertainable on September 24, 2008. 6. The preponderance of the evidence shows the Veteran’s left shoulder arthritis does not manifest in limitation of motion reduced to 25 degrees from the side. 7. The Veteran’s service-connected disabilities were not shown to preclude him from maintaining substantially gainful employment prior to April 30, 2008. 8. The effective date of May 11, 2009 was assigned for service connection for a TBI in a July 2009 rating decision that became final because he did not submit a notice of disagreement (NOD) or new and material evidence within the appeal period. 9. The correct facts, as known at the time, were before the VA adjudicators in the July 2009 rating decision and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. Beginning June 1, 2007, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for an increased rating of 40 percent for a TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 8045 3. The criteria for a 60 percent rating for digestive symptom disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.113, 4.114, Diagnostic Code 7346. 4. The criteria for a compensable rating for scar residuals of the left shoulder, left arm, left back, left thigh, right forearm, and right calf due to basal cell carcinoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes 7818-7805. 5. The criteria for entitlement to a 30 percent rating, but no higher, for scar residuals of the head, neck, and face have been met as of September 24, 2008, but no earlier. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7800. 6. The criteria for entitlement to an increased rating in excess of 20 percent for left shoulder arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.45, 4.71a, Diagnostic Code 5201. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 7. The criteria for a TDIU prior to April 30, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16.  8. The criteria for entitlement to revision of a July 2009 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to May 2007. These matters are on appeal to the Board of Veterans’ Appeals (Board) from June 2007, December 2008, July 2009, November 2009, September 2010, May 2013, and August 2017 rating decisions. The claims were remanded by the Board in April 2015, December 2018, and November 2019. The most recent November 2019 directives regarding attempts to obtain updated private and VA treatment records have been completed; however, for reasons explained below, directives regarding a VA examination for the Veteran’s service connection claim for a mouth lesion have not been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased rating - PTSD The Veteran has had several staged ratings throughout the appeal period. Currently, his staged ratings are as follows: 30 percent from June 1, 2007 (the date after discharge from service) to May 12, 2008; 100 percent from May 13, 2008 to August 31, 2008 (based on 38 C.F.R. § 4.29); 50 percent from September 1, 2008 to July 31, 2017; 100 percent from August 1, 2017 to December 2, 2019; and a 70 percent rating from December 3, 2019. The entire period from June 1, 2007 is on appeal, excluding the periods of a 100 percent disability assignment. First, the Board acknowledges the Veteran’s contention that his alcohol use disorder is entitled to a separate rating from his PTSD. VA rates mental and psychiatric disabilities under a common rating schedule, which adequately compensates both the Veteran’s diagnoses in this case. While substance abuse is not explicitly contemplated by the rating criteria (as service connection for substance abuse on a direct basis is generally not permitted pursuant to 38 C.F.R. § 3.12), the Veteran’s substance abuse and effects of such abuse have been considered in determining his occupational and social impairment under the Rating Formula. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran’s mental disability causes 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is assigned when a veteran’s mental disability causes 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran’s mental disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, 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 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 work like setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. When rating a mental disorder, VA must consider the frequency, severity, and duration of the veteran’s psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013). The evidence shows that after the Veteran’s return from Iraq in 2003, he began experiencing symptoms of PTSD and drank heavily to cope. Upon discharge from service, the Veteran worked as a Physicians’ Assistant (PA) in the private sector for approximately a year before his PTSD and TBI symptoms culminated in an emotional event at work, leading the Veteran to take medical leave and attend in-patient rehabilitation for approximately 3 months in 2008. He has a temporary 100 percent rating during that time period. In a February 2008 statement, the Veteran explained that his ongoing symptoms were crying episodes, loss of concentration, depressive symptoms, increased irritability and anger, an exaggerated startle response with loud noises or when surprised, and recurrent or intrusive memories of Iraq during the time of year when he was deployed (February through May). In a March 2008 VA examination, the Veteran described his crying episodes and emotional distress upon returning from deployment that resulted in sleep impairment and alcohol abuse. He described incidents of poor judgment at work and difficulties in his marital and parental relationships due to his drinking and anger outbursts. He would have nightmares of his in-service stressors such as the death of a fellow servicemember, and experience heightened depressive symptoms from February to May. He had an exaggerated startle response and is always hypervigilant. The examiner noted significant PTSD symptoms, including difficulty establishing and maintaining effective work and social relationships, but he was able to maintain family role functioning and had no difficulty with recreation or leisurely pursuits. There were no panic attacks, paranoia, or suicidal ideation noted and the Veteran posed no threat of danger to himself or others. In an October 2008 VA examination, he again endorsed spontaneous crying episodes, an exaggerated startle response, hypervigilance, hyperirritability, labile emotions, and significant loss of concentration and focus. He stated these symptoms were constant. He had been sober following his completion of in-patient rehabilitation. The Veteran explained that upon return from service he would have nightmares, flashbacks, constant hypervigilance, and would relive distressing events. Post-service, he experienced impatience and irritability with his patients and became so overwhelmed with depression that he was late completing his charts and fulfilling his work duties. The examiner stated the Veteran’s alcohol dependence and PTSD were related as the Veteran turned to alcohol to cope with his worsening PTSD symptoms and stress. Thus, as he was now sober, he was learning to cope with his symptoms without substances. Regarding his symptoms, the examiner found the Veteran did not have difficulty performing activities of daily living and was able to maintain effective family role functioning. He had no difficulty with recreation or leisurely pursuits and posed no threat of danger to himself or others. In an addendum, it was clarified that the alcohol abuse was separate from the PTSD symptom criteria in the sense that the Veteran used alcohol as a coping mechanism. He met criteria for alcohol dependence separately from the PTSD diagnosis and the alcohol dependence is in early remission. Since undergoing treatment, the Veteran’s PTSD symptoms had worsened which is common. In a June 2009 VA examination, he described symptoms of exaggerated startle response, hypersensitivity and physiological reactivity to the smell of fireworks and sound of unexpected loud noises, irritability, avoidance of crowds and conversations of his time in Iraq, and sleep disturbances. He stated these symptoms are constant and affect his total daily functioning resulting in difficulty with occupational, marital, and parental relationships. Lack of social involvement was indicated with panic attacks occurring less than once a week. He had a decent relationship with his siblings, an improved relationship with his wife due to ongoing counseling, and a good relationship with his youngest daughter, though had strained relationships with his older children from his first marriage. The examiner found there was some interference in performing activities of daily living because of difficulty engaging in activities outside the home due to anxiety among crowds of people. He had difficulty establishing and maintaining effective work, school, and social relationships because of increased irritability and anger outbursts. He had difficulty managing his anxiety in unfamiliar and stressful situations, and difficulty maintaining effective family role functioning due to increased irritability and anger. He had occasional interference with recreation or leisurely pursuits due to anxiety and hypervigilance in public. However, he did not pose any threat of danger to himself or others. The Veteran’s wife, also a retired PA, submitted a statement in January 2010. She explained that prior to the Veteran’s PTSD and TBI, he was a highly functioning servicemember in the medical field. She witnessed her husband’s progressive decompensation over the years. Regarding his PTSD, she listed his symptoms as impaired sleep, frequent anger outbursts and irritability, emotional withdrawal and social isolation, anxiety in traffic and in unfamiliar places, avoidance behaviors, exaggerated startle response, and feeling of frustration due to his perceived weaknesses and shortcomings. She believed he had been minimizing his symptoms in prior examinations. In an October 2010 mental health therapy note, the Veteran described his anger seeing people act nonchalantly while news of war was on in the background on his college campus. He avoided long car rides due to his fear of being stuck in traffic as it triggered panic attacks. He related that going to his daughters’ sports games was difficult due to the crowds and the noise. He endorsed staying active by going to the gym five days a week, walking his dog daily, and doing home rehabilitation work with his wife, who he indicated was supportive. In a March 2011 psychological evaluation to assist the Veteran’s claim for social security disability benefits, the examining psychologist noted strong startle response and hypervigilance with panic attacks. The Veteran was irritable and anxious at the examination and worried about his daughter who was about to be deployed. He had significant nightmares that had decreased with medication. Regarding his daily life, he stated he gets his daughter off to school in the mornings and takes care of his two dogs. He talked to his immediate family and has military friends he communicates with regularly. He also attended AA meetings a few times a week. At the time of examination, he was taking courses at a community college to become a chemical dependency counselor. In March 2011 correspondence, the Veteran indicated his symptoms were worsening, and he had begun taking medication and undergoing counseling. Of note, he was found to be disabled by the Social Security Administration (SSA) in March 2011 due to his mental disabilities. In records furnished by the SSA, it was indicated that the Veteran retained the ability to interact with others but due to his low stress tolerance, he should have limited public contact. Additionally, his wife remarked on the Veteran’s impulsivity when it came to financial decisions. Treatment records in 2014 and 2015 indicate the Veteran’s PTSD is well controlled with medication, exercise, and routine, yet he still experiences flare-ups of symptoms during certain times of the year. In a March 2016 VA examination, the examiner indicated the Veteran’s PTSD manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. The Veteran stated certain smells and the sound of the national anthem trigger crying or a negative emotion reaction. Irritability and anger outbursts, insomnia, hypervigilance, startle reactions, and poor concentration persist. He also reported he was no longer sober; he admitted to a six-pack of beer or so a week but stated it was not like before his consumption necessitated treatment. His other listed symptoms were depressed mood, anxiety, and disturbances of motivation and mood. The Veteran underwent a VA examination in August 2017; as the Veteran was found to suffer total occupational and social impairment and his rating was increased to 100 percent at that time, the Board will not address the examination in detail. In a December 2019 VA examination, the examiner indicated that the Veteran was experiencing moderate, chronic PTSD symptoms and also a moderate alcohol use disorder. The Veteran reported drinking approximately 7 to 8 beers a night. His listed symptoms were depressed mood, anxiety, suspiciousness, suicidal ideation, and chronic sleep impairment. He endorsed a great relationship with his daughter and did not report conflict with his spouse. He spoke to his siblings regularly and completed errands or chores around the house, including caring for the dogs. He was taking medication but had not engaged in recent psychotherapy, remarking that he did not see a reason for treatment as he avoids activities that make him anxious. The examiner found his current symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Upon review of all the evidence, the Board finds the Veteran’s symptoms more closely approximate occupational and social impairment with deficiencies in most areas. The evidence is clear that upon discharge from service in June 2007, the Veteran was experiencing significant symptomatology that resulted in heavy alcohol abuse, an in-patient therapy program, and his retirement from the medical field. The record also reflects conflict with his spouse and daughter during this time due to his drinking and anger. Even after becoming sober, the evidence shows constant symptomatology affecting his daily life, such as hypervigilance, anxiety being around people or in traffic, exaggerated startle response, and anger toward others. In recent years, the Veteran has started drinking again and has also begun experiencing suicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas”). Thus, while the evidence appears to show some periods of improvement in managing his symptoms, likely due to medication and additional coping mechanisms, the evidence does not show sustained improvement insofar as occupational and social impairment. Aside from the above-noted periods of 100 percent rating assignments, the evidence does not reflect total occupational and social impairment. While it is true that the Veteran experienced total occupational impairment in his field, he has consistently maintained relationships with his wife and daughter (albeit with conflict at times, as reflected by the 70 percent rating criteria), as well as friends and siblings. He regularly attended the gym, AA meetings, college courses, and walked the dogs. Moreover, in regards to the listed symptoms under the 100 percent rating criteria, the evidence does not reflect gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly impairment behavior, persistent danger of hurting self or others, inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, his own name, etc. In sum, the evidence more nearly approximates a 70 percent rating, but no higher, from June 1, 2007 (excluding previously assigned periods of 100 percent). 2. Increased rating - TBI The Veteran is currently assigned a 10 percent rating under Diagnostic Code 8045 for mild impairment in visual-spatial orientation. The current version of 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. See 38 C.F.R. § 4.124, Diagnostic Code 8045.  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.  The current version of 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.  Diagnostic Code 8045 also instructs to evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings – mental disorder) 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 a Traumatic Brain Injury Not Otherwise Classified.” The Veteran has undergone extensive neuropsychological testing. He sustained multiple closed head injuries and concussions while in service, to include a concussion in a motor vehicle accident in 2003 while deployed. The Veteran has consistently endorsed cognitive difficulties since that time, such as problems with problem solving or following complex instructions. He was forced to retire in 2008 upon testing that revealed a cognitive deficit. A May 2008 positive TBI screening reflected complaints of headaches and memory problems or lapses. May 2008 neuropsychology testing showed cognitive impairment in the domains of problem solving and abstract reasoning; it was suspected that such might improve with prolonged sobriety. July 2008 repeat testing showed an improvement since May but continued severe impairments in abstract thinking, deductive reasoning, and problem-solving skills. His ability to apply existing knowledge in new or unique situations was severely impaired. A significant deficit in visual/motor and constructional skills was noted. In September 2008 repeat testing, there was some improvement, but there was continued impairments in abstract problem solving and visual-spatial problem solving. In November 2008 repeat testing, the bulk of his cognitive test performances were within the normal range; however, he continued to show weaknesses in his visual-spatial skills. In a March 2009 neuropsychological evaluation, the Veteran reported continued difficulty with “abstraction and other thinking skills.” In his May 2009 claim, the Veteran explained that starting in 2001, he noticed a gradual worsening problem with problem solving and abstract reasoning. He was having trouble following detailed instructions both orally and written. These issues significantly worsened in 2003. He noted that since abstaining from alcohol for over a year, most of his cognitive functions have returned to normal with the exception of the area of the brain that controls problem solving/visual spatial relationships. The Veteran underwent a VA examination for his TBI in June 2009. He reported headaches approximately twice a week that did not impair his ability to work. Associated symptoms were fatigue, light sensitivity, and hypersensitivity to sound. He also reported dizziness four times a week. He reported mood swings, problems with attention/concentration, and difficulty understanding directions. He reported a moderate memory problem described as abstract reasoning, problem solving, and visual-spatial relationships. Regarding the 10 facets, there was objective evidence of mild memory, concentration, and attention difficulties, resulting in mild impairment (2). He had mildly impaired judgment (1). His social interaction was occasionally inappropriate (1). He had mildly impaired visual spatial orientation (1). He had 3 or more subjective symptoms that mildly interfered with family, work, and close relationships (1). He had one or more neurobehavioral effects that occasionally interfered with work (1). All other facets were given a “0”. The Board notes the Veteran’s objections to the adequacy of the June 2009 TBI examination conducted by Dr. F; however, as it pertains to the 10 facets, those findings were reached by a different examiner, Dr. B. In a January 2010 statement, the Veteran’s wife explained that she has witnessed her husband’s difficulties with assembling objects with even minimal complexity involved, and that he becomes confused and frustrated when multi-tasked with activities of daily living. His problem-solving skills are limited to situations involving minimal difficulty. In a March 2011 psychological evaluation, the Veteran stated his long and short-term memories were not affected, but he has problems with problem-solving, abstract reasoning, executive functioning, and visual-spatial processing. He recalled incidents where he left things in the oven or on the stove, so his wife did not allow him to cook. The examiner found that the Veteran’s memory, concentration, and pace were within normal limits, but he did have problems with executive functioning. He had difficulty remembering procedures he had done for years while working as a PA, and while he was capable of understanding, remembering, and carrying out short and simple instructions, he had difficulty with complex procedures. In a January 2013 VA examination, the Veteran reported problems with attention and concentration, short-term memory, and visual-spatial problems. The symptoms persisted since the 2003 accident and he stated his short-term memory had worsened. Regarding the 10 facets, the examiner indicated there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment (2). His visual spatial orientation was mildly impaired (1). All other facets were given a “0”. In a June 2013 NOD, the Veteran endorsed symptoms of headaches, sensitivity to light, and difficulty with abstract reasoning, detailed complex problem solving, and visual-spatial relations. As an example, he recalled attempting to put a gas BBQ kit together and was unable to read the directions correctly and put parts in upside down or at wrong angles. He had to read directions 3 to 4 times because he switched words and had difficulty knowing if he had read it correctly. In a December 2019 VA examination, the Veteran’s listed current symptoms were headaches and cognitive issues. Regarding the 10 facets, the highest level of impairment was a “1” for mildly impaired visual spatial orientation and 3 or more subjective symptoms that mildly interfere with work (headaches, photophobia, and hypersensitivity to sounds). It was indicated there were no complaints of impairment of memory, attention, concentration, or executive functions. In reaching these conclusions, the examiner indicated the claims file was reviewed and specifically noted the September 2008 neuropsychological testing. The Board finds that the preponderance of the evidence supports a 40 percent rating, as there is objective evidence on testing of mild impairment of memory, attention, concentration, or executive functioning warranting a “2”. This is consistent with the Veteran’s complaints of cognitive impairment throughout the record. While the most recent examination did not indicate any such complaints, not only is this inconsistent with the record (which shows multiple complaints of difficulty with memory, concentration, attention, and executive functioning), but it does not appear any testing was completed at the time of the examination. Moreover, the December 2019 examiner indicated the Veteran’s condition had stayed the same rather than improved. Thus, the highest level of impairment shown by objective and probative evidence of record warrants a 40 percent rating, but no higher. Of note, the Veteran is separately rated for headaches as of December 3, 2019; while he complained of these symptoms prior to the December 2019 examination, this would have only warranted a “1” level of impairment as the evidence shows the Veteran experienced hypersensitivity to light and sound and dizziness – all symptoms associated with a “1” level of impairment. 3. Increased rating - GERD with Barrett's esophagus, hypertrophic gastritis, and IBS The Veteran is currently assigned a 30 percent rating for his digestive system disabilities, to include GERD, Barrett’s esophagus, hypertrophic gastritis, and IBS under Diagnostic Code (DC) 7346 as of December 30, 2009. GERD is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board has considered other applicable diagnostic codes (e.g., DC 7307 for hypertrophic gastritis, DC 7319 for irritable colon syndrome) and finds that DC 7346 is the most closely analogous in terms of symptomatology and resulting disability picture, as well as most beneficial to the Veteran. At the outset, the Board acknowledges the Veteran’s contentions that his disabilities warrant separate ratings as he experiences distinct symptoms specifically from his GERD and IBS. His disabilities are coexisting abdominal conditions and disorders of the digestive system under 38 C.F.R. §§ 4.113 and 4.114. 38 C.F.R. §§ 4.113 and 4.114 require that since certain diseases of the digestive system produce a common disability picture, specifically, ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, they must be evaluated together in order to avoid pyramiding (evaluating the same disability under various diagnoses). 38 CFR 4.114 provides that when a single evaluation is assigned, it should reflect the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Thus, while separate ratings are not applicable, the Board has taken the overall disability picture into consideration for rating purposes. Under DC 7346, in pertinent part, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, which is productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. In a January 2010 VA examination, the Veteran endorsed symptoms of dysphagia, heartburn, epigastric pain, scapular pain, reflux, regurgitation, and nausea and vomiting. He had no arm pain, hematemesis or melena. Symptoms occurred daily and at times awaken him at night. He endorsed a persistent brackish taste in his mouth. He approximated the number of attacks within the past year to be 200. In terms of ability to perform daily function during flare-ups, he is unable to bend at the waist or lift heavy objects, unable to sleep in his bed unless elevated, suffers constant burping, and an inability to eat. Regarding his IBS, his general body health was affected by prolapse of internal hemorrhoids, weight loss, and fecal spasms. Over the past 18 months the Veteran had lost 14 pounds. He had nausea and vomiting and alternative diarrhea and constipation with symptoms occurring approximately twice weekly. He also experienced abdominal stress and cramps. He approximated the number of attacks within the past year to be 104. He was unable to travel in a car because he needs to be near a toilet, and experienced rectal bleeding. He was unable to eat during his episodes. He must lay down until symptoms subside. In his December 2010 NOD, he described his symptoms to include dysphagia, heartburn, epigastric pain, scapular pain, reflux, regurgitation, nausea and vomiting. A December 2011 medical record reflected the Veteran was on medication for GERD and was currently without symptoms. A September 2012 record reflected complaints of reflux, intermittent hoarseness and dysphagia, which was attributed to his Barrett’s esophagus. In a December 2012 VA examination, the Veteran endorsed symptoms of infrequent episodes of epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, sleep disturbances caused by symptoms 4 or more times per year, and periodic nausea 4 or more times per year. A 2010 EGD showed a mild esophageal stricture. He listed foods that trigger his symptoms. For his IBS, he endorsed weekly episodes of alternating diarrhea and constipation and abdominal distension. He also experienced bloating and flatulence with loss of appetite during episodes. He stated it interferes with his life as he must find a bathroom everywhere he goes and adjust his diet. In an October 2015 medical record, the Veteran stated he did not have nausea and vomiting but did have diarrhea 5 to 6 times daily which had been consistent for years. In October 2016, he denied any abdominal pain, nausea, vomiting, or any significant constipation, diarrhea, melena, or rectal bleeding. He endorsed occasional dysphagia. He had no additional symptoms in a January 2017 follow-up visit. In a December 2019 VA examination, his listed GERD symptoms were heartburn, reflux, nausea 4 times or more per year, and sleep disturbances caused by symptoms 4 times or more per year. No functional impact was noted. Regarding his IBS, the Veteran had alternating constipation and diarrhea which distracted him from focusing on tasks and required him to find a bathroom everywhere he goes. He endorsed 7 or more attacks of diarrhea with bloating and abdominal intestinal cramping per year. Regarding his hypertrophic gastritis, the examiner indicated he had recurring episodes (4 or more a year) of symptoms that are not severe. Such symptoms were abdominal discomfort and transient nausea. He indicated the condition was chronic with multiple small eroded or ulcerated areas. While the record varies as to the severity of the Veteran’s symptoms at times, the Board finds the overall disability picture causes a severe impairment of health. The Veteran experiences a number of frequently occurring digestive symptoms that interfere with his daily life, such as sleep disturbances, diet restriction, abdominal distress including nausea, reflux and heartburn, and frequent diarrhea and constipation that require him to make adjustments when leaving the house. Thus, the Board finds that a 60 percent rating is warranted, which is the highest schedular rating available under DC 7346. 4. Increased rating - scar residuals of the left shoulder, left upper back, left upper arm, right forearm, left thigh, and right calf due to basal cell carcinoma The Veteran is assigned noncompensable ratings for scar residuals stemming from several excisional biopsies for basal cell carcinoma. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran’s malignant skin neoplasms (other than malignant melanoma) (DC 7818) are rated as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801 – 7805), or impairment of function. Under DC 7801, a 10 percent rating is warranted for scars or burn scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is warranted for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is warranted for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) provides that, for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Under DC 7802, a 10 percent rating is warranted for burn scars or scars not of the head, face, or neck, that are not associated with underlying soft tissue damage, for an area or areas of 144 square inches (929 sq. cm.) or greater. Under DC 7804, one or more scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; five or more scars that are unstable or painful warrant a 30 percent rating. These provisions were not changed by the August 13, 2018, revision. 38 C.F.R. § 4.118, DC 7804. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar and that a superficial scar is one not associated with underlying soft tissue damage. For DC 7804, Note (2) provides that that if one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DC’s 7800, 7801, 7802, or 7805 may receive additional evaluation under DC 7804 when applicable. Under DC 7805, other scars, including linear scars, and other effects of scars evaluated under DC’s 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided DC’s 7800 through 7804 will be evaluated under an appropriate diagnostic code. Effective as of August 13, 2018, the phrase “including linear scars” was deleted from DC 7805; otherwise, the criteria remain the same. This amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. Thus, it can only be applied in this matter from August 13, 2018, forward. In an October 2009 VA examination, the Veteran described his right calf, left shoulder, left upper arm, and left upper back scars to have no treatment residuals. Hypopigmentation was noted in various areas. It was specifically noted there was no pain on examination and each scar was linear, superficial, not disfiguring, with no underlying tissue damage. His left shoulder scar measured 1 cm by 0.5 cm. The left upper back scar was 1.5 cm by 1.5 cm. The left upper arm scar was 1 cm by 0.2 cm. The right calf scar was 1.5 cm by 1.5 cm. In a December 2012 VA examination, each scar was noted to be superficial and non-linear and not painful or unstable. The left shoulder scar was 1 by 1 cm; the right calf scar was 1.5 by 1.5 cm; the left thigh scar was 0.75 by 0.75 cm; and the left upper back scar was 1 by 1 cm. In his June 2013 NOD, the Veteran stated his right forearm, left outer thigh, left upper back, and right calf scars are tender and painful. He explained he is unable to sleep on his back because his scars are uncomfortable. He also stated his back and right calf scars are hypopigmented. In a December 2019 VA examination, the examiner indicated the scars were not painful, not unstable, with no underlying tissue damage. The right forearm scar measured 1 by 1 cm; the right calf scar measured 1 by 1 cm; the left thigh scar measured 1 by 1 cm; and the posterior trunk (back) had 5 scars each measuring 1 by 1 cm (totaling 5 cm squared). The left arm and shoulder scars were not indicated. Based on the evidence, a compensable rating is not warranted. There is no evidence of underlying soft tissue damage, and the scars do not cover an area of 144 square inches or greater, thus rendering DC’s 7801 and 7802 inapplicable. For DC 7804, the preponderance of the evidence indicates the scars are not painful or unstable. While the Board acknowledges the competency of the Veteran to testify as to observable symptomatology, particularly considering his occupational background in the medical field, the 2009, 2012, and 2019 examinations all indicate the scars were not painful upon examination. The Board finds that statements made by the Veteran to medical professionals for treatment and/or examination purposes to be highly probative. Thus, while there is one contention of pain in the record, the Board finds that the preponderance of the evidence is against a finding of painful or unstable scars, thus rendering DC 7804 inapplicable. The Board acknowledges the Veteran’s November 2011 statement that his scars cause anxiety due to self-consciousness about his appearance. While the Board is sympathetic to the Veteran’s circumstances, it must adhere to the rating criteria which is based upon the nature and measurements of the scars. Thus, given the above evidence, the Veteran is entitled to a noncompensable ratings and his claims for increased ratings must be denied. 5. Increased rating - scar residuals of the head, neck, and face The Veteran is currently assigned a 10 percent rating for his head, neck, and face scar residuals based on a scar with one characteristic of disfigurement (a scar at least 0.6 inches wide) as of September 24, 2008. Under DC 7800, which contemplates scars or disfigurement of the head, face or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (4) instructs to separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nervy injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5) states that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. The Board acknowledges the Veteran’s contention that his nose and neck scars warrant separate ratings. However, DC 7800 applies to more than one scar, and the Board has considered the Veteran’s overall scar residuals in reaching a single rating under DC 7800. In an October 2009 VA examination, the Veteran reported pain associated with his nose scar; however, pain was not noted upon examination. It was a superficial, linear scar measuring 1 cm by 0.2 cm with no underlying tissue damage or disfigurement. In the December 2012 VA examination, additional facial scars were noted, to include excisions on the left cheek and three on the right neck, as well as a forehead scar that occurred in his in-service accident similar to his nose scar. The examiner indicated that none of the scars were painful or unstable. A forehead scar was measured at 0.3 cm by 0.1 cm; his nose scar was 1 by 0.2 cm; his left cheek scar was 0.4 by 0.1 cm; a right neck scar was 1 by 0.5 cm; another right neck scar was 1 by 1 cm; and the third neck scar was 1 by 1 cm. There was hypopigmentation of the three neck scars with a total area of 2.5 cm squared. In the December 2019 VA examination, the examiner noted the Veteran’s several excisional biopsies for skin lesions on his face and neck, and stated they have all turned out to be basal cell carcinoma lesions. His last excisional biopsy was of the left ear in 2016. It was indicated that none of the head, face, or neck scars were painful or unstable. The nose scar was 0.7 cm by 0.5 cm; a posterior neck was 1 by 1 cm; another neck scar was 0.5 by 0.5 cm; and the left ear was 1 by 0.5 cm. The left ear scar had surface contour depressed on palpation with underlying soft tissue missing. There was hypopigmentation of one of the neck scars. The total area of hypopigmented areas was 1.25 cm squared, and the total area of missing underlying soft tissue was 0.5 cm squared. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board finds that staged ratings are warranted here. The 2009 examination showed no characteristics of disfigurement or other findings that would warrant a rating in excess of 10 percent. While the Veteran did note pain as a symptom, the examination also shows no pain on examination. Moreover, the other examinations do not reflect pain, and the Veteran did not endorse pain in his June 2013 NOD while endorsing pain for other scars. Thus, the Board finds the preponderance of the evidence weighs against a finding of pain associated with the nose scar. In the December 2012 VA examination, two characteristics of disfigurement were indicated as two of the neck scars were at least 0.6 cm wide. Thus, two characteristics of disfigurement were present as of September 24, 2008, the date the Veteran’s treatment records reflect the neck biopsies. In the December 2019 VA examination, the Veteran had one neck scar that exceeded 0.6 cm wide, and his left ear had surface contour depressed on palpation. While the Board acknowledges that this examination did not reference one of the neck scars or the left cheek scar, based on the 2012 examination, the other neck scar measured 1 by 1 cm (showing one characteristic of disfigurement), and the left cheek scar had no characteristics of disfigurement. While there was underlying soft tissue and hypopigmentation, there was not gross distortion or asymmetry, nor did the affected areas exceed 6 square inches. Therefore, on this date, the Board finds the Veteran exhibited three characteristics of disfigurement. As the Veteran exhibited two to three characteristics of disfigurement as of September 24, 2008, he was entitled to a 30 percent rating, but no higher, as of that date. Prior to September 24, 2008, the evidence does not warrant a compensable rating. The Board acknowledges the Veteran’s November 2011 statement that his scars cause anxiety due to self-consciousness about his appearance. While the Board is sympathetic to the Veteran’s circumstances, it must adhere to the rating criteria which is based upon the nature and measurements of the scars. 6. Increased rating - left shoulder arthritis The Veteran is currently assigned a 20 percent rating for his left shoulder arthritis. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the Veteran’s disability affects his nondominant arm as he is right-handed. DC 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. Of note, revisions to musculoskeletal regulations became effective February 7, 2021. Regarding DC 5201, the revision simply clarifies that “at shoulder level” is 90 degrees, and “midway between shoulder level and side” is 45 degrees. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran underwent VA examinations in January 2007, March 2008, and October 2009. However, each examination was deficient in terms of range of motion (ROM) measurements in light of Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009) and/or Correia v. McDonald, 28 Vet. App. 158, 168-70 (2017). In February 2008 correspondence, the Veteran stated his left shoulder had been painful in several years, and X-rays showed degenerative changes. He indicated he did not have full ROM. The treatment records reflect chronic pain. A September 2008 record shows abduction and flexion limited to 130 degrees and limited internal rotation. A November 2009 record indicates limited ROM due to pain; the Veteran was able to raise his arms 30 degrees. Another November 2009 record notes chronic pain, and the Veteran stated he is doing well with medication as long as he does not try to reach over his head. In March 2011, abduction was to 90 degrees, adduction to 30 degrees, extension to 50 degrees, and anterior flexion to 90 degrees. He had decreased internal rotation. Tenderness and crepitus were noted. At the time, the Veteran complained of constant pain in his shoulder and difficulty with overhead reaching. In a 2011 physical residual functional capacity assessment for Social Security disability purposes, the examining physician noted that his shoulder ROM in 2008 was 130-150 bilaterally, and remarked it is unclear why his 2011 ROMs were reduced to 90 despite his overall appearance of being “in excellent physical condition with a good upper and lower torso musculature.” Nevertheless, the examiner concluded the Veteran was mildly limited in overhead reaching. In his June 2013 NOD, the Veteran stated he is only able to lift his arm in abduction about 30 degrees from his side before experiencing pain. Most recently, the Veteran underwent a VA examination in December 2019. He described chronic pain and an inability to work overhead or lift above 25 pounds with his shoulder. His most severe ROM’s during flare-ups and with repeated use over time were as follows: flexion and abduction to 81 degrees, external rotation to 54 degrees, and internal rotation to 45 degrees. The above ROM’s reflect the Veteran’s limited functional ability due to pain. The evidence shows considerable variance in the Veteran’s limitation of motion; regardless, it does not reflect limitation of 25 degrees or less from the side at any time throughout the appeal period. The Board finds that other diagnostic codes involving shoulder or arm disabilities (DC’s 5200, 5202, 5203) are not applicable from the evidence. The provisions of 38 C.F.R. § 4.40 and § 4.45 have been applied and are reflected in the December 2019 VA examination findings. Thus, the Veteran is entitled to a 20 percent rating, but no higher, for his left shoulder arthritis and his claim is denied. 6. Entitlement ot a TDIU prior to April 30, 2008 Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran became entitled to a TDIU on April 30, 2008, the date he left the workforce as a Physicians’ Assistant due to the manifestations of his PTSD and TBI. Despite significant challenges, the Veteran was able to maintain gainful employment in the medical field until April 29, 2008 – with that being the case, he was not entitled to a TDIU during the time he was gainfully employed, and the Veteran’s claim is denied. 7. CUE in the July 2009 rating decision that assigned an effective date of May 11, 2009 for service connection for a TBI The Veteran asserts that there is CUE in the July 2009 rating decision that granted service connection for a TBI effective May 11, 2009. He contends the appropriate effective date is June 1, 2007, the date after discharge from service. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). As explained in the November 2019 Board remand, a July 2009 rating action found the effective date to be May 11, 2009, and the Veteran did not file a timely NOD challenging this specific determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the July 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160 (d), 3.156 (b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. In January 2014, the Veteran, through his representative, submitted correspondence stating that a review of the records shows that his August 11, 2006 VA Form 21-526 shows that he reported suffering a nasal fracture and concussion, which is also documented in his service records. Thus, the Veteran contended that a claim of a head injury, concussion, or TBI was found to have been reasonably raised by the record, warranting an earlier effective date. In May 2015, the Veteran submitted the VA Form 21-526 that appears to have been accessed and drafted in August 2006. The form indeed includes a statement describing an in-service accident resulting in a fractured nose and concussion. However, the August 2006 VA Form 21-526 that was actually submitted in 2006 did not include the statement. The listed claims were basal cell cancer of the skin, PTSD, rotator cuff tear, subcutaneous lesion of the left hip, hypertension, hyperlipidemia, arthritis of the left thumb, and seborrheic keratosis of the face. The evidence that the Veteran contends is in support of his CUE claim was not of record at the time the July 2009 rating decision was issued. A determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell, 3 Vet. App. at 313-14. Therefore, evidence that was not of record at the time of the July 2009 rating decision cannot be the basis for finding that the RO committed CUE. Porter, 5 Vet. App. at 236. To the extent that the Veteran contends that other evidence of record, such as service treatment records or post-service records documenting the in-service concussion or head injury reflect an intent to file a claim, the Board finds that the existence of these medical records alone is insufficient to find that a claim had been filed, warranting CUE. Medical records standing alone are not sufficient to constitute an informal claim because such “evidence does not establish an intent on the part of the veteran to seek... service connection.” Brannon v. West, 12 Vet. App. 32, 35 (1998). At most, VA’s failure to construe these records as intent and develop the claim constitutes a breach of the duty to assist, which does not constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002) (a breach of the duty to assist cannot constitute CUE); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). This is bolstered by the fact that the post-service neuropsychological testing and TBI screening of record prior to the July 2009 decision include information regarding PTSD; thus, they could have just as easily been construed as evidence pertaining to his pending PTSD claim. Such circumstances do not meet the high standard for CUE. In sum, there is no evidence of record reflecting an intent to file a claim for a TBI until May 11, 2009. Thus, that is the appropriate effective date and the Veteran’s claim of CUE in the July 2009 rating decision is denied. REASONS FOR REMAND Entitlement to service connection for status post biopsy of a mouth lesion The Veteran contends he is entitled to service connection for a mouth lesion requiring biopsy in 2011, to include as secondary to his digestive system disabilities or due to contaminated water while stationed at Camp Lejeune. In July 2012 correspondence, the Veteran stated he was stationed at Camp Lejeune from 1982 to 1985 (which is confirmed by his service records), and he had a patch of pre-cancerous lesion lasered from his mouth in 2011, indicating a contention of a possible nexus. In the November 2019 Board decision, the remand directives requested the examiner to opine whether it was at least as likely as not that the mouth lesion was related to active service, his digestive system disabilities, or contamination in the water at Camp Lejeune. A VA opinion was obtained in December 2019. The examiner opined the Veteran’s mouth lesion was less likely than not related to service as the service treatment record’s do not show any evidence that he was seen for a mouth lesion during service. The examiner also opined that the mouth lesion was less likely than not proximately related to the Veteran’s digestive system disabilities, remarking that such disabilities are not known to cause oral cancers of any type requiring excisional biopsies. Regarding aggravation, the examiner opined that the oral cancer was caused by smoking and not aggravated by the digestive system disabilities. The examiner did not provide an opinion on whether it could be caused by contaminated water at Camp Lejeune. The examination is inadequate. First, the examiner’s opinion regarding direct service connection appears to rely entirely on the absence of evidence during service. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Second, the medical records beginning in 2011 show a history of floor of mouth dysplasia. A June 2010 upper endoscopy biopsy showed Barrett’s esophagus without dysplasia (conversion of the esophageal cell-type lining to stomach cell-type lining caused by severe acid exposure to the esophagus – pre-cancerous stage). The examiner does not address this evidence, and as it suggests a possible link between digestive system disabilities and mouth dysplasia, the Board finds that such a failure renders the examination inadequate. Third, while the Board acknowledges the Veteran’s subsequent statements that his mouth lesion is not related to contaminated water at Camp Lejeune, regardless, the examiner failed to comply with remand directives, which renders the examination inadequate. In light of the above, remand is required to obtain a new examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA provides an examination or obtains an opinion, the examination or opinion must be adequate). The matter is REMANDED for the following action: Obtain a VA examination for the Veteran’s service connection claim for a mouth lesion. The examiner must be competent to opine on whether the pre-cancerous lesion was caused by contaminated water at Camp Lejeune. The examiner should provide an opinion as to the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the disorder first manifested during or is otherwise related to active service, to include his exposure to contaminants in the water supply while stationed at Camp Lejeune (notwithstanding the fact that it may not be a presumed association)? (b) Is it at least as likely as not that the disorder was caused OR aggravated beyond its natural progression by the Veteran’s service-connected GERD, Barrett’s esophagus, hypertrophic gastritis, or IBS? In reaching the above conclusion, the examiner must address the significance, if any, of the June 2010 upper endoscopy biopsy findings that discuss Barrett’s esophagus and dysplasia. The examiner is reminded that a lack of treatment of a disability in service, without more, is insufficient to find it is less likely than not related to service. A clear, detailed rationale is requested for each opinion. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.