Citation Nr: 21012443 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-06 514A DATE: March 4, 2021 ORDER Prior to February 5, 2019, entitlement to a disability rating higher than 20 percent for the service-connected right upper extremity (major) neurological disability is denied. Prior to February 5, 2019, entitlement to a disability rating higher than 20 percent for the service-connected left upper extremity (minor) neurological disability is denied. Since July 7, 2019, entitlement to a disability rating higher than 20 percent for the service-connected thoracolumbar spine (low back) disability is denied. Since July 7, 2019, entitlement to a disability rating higher than 10 percent for the service-connected left thigh (hip flexion) disability is denied. Prior to September 3, 2014, a disability rating of 10 percent, but not higher, for the service-connected bowel disability, is granted. Since July 7, 2019, a disability rating higher than 10 percent for the service-connected bowel disability is denied. REMANDED Entitlement to a disability rating higher than 10 percent for the service-connected neck disability, prior to April 11, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to February 5, 2019, the service-connected right upper extremity neurological disability was manifested by mild incomplete paralysis of the major upper extremity. 2. Prior to February 5, 2019, the service-connected left upper extremity neurological disability was manifested by mild incomplete paralysis of the minor upper extremity. 3. Since July 7, 2019, the service-connected low back disability is manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees. 4. Since July 7, 2019, the service-connected left hip disability is manifested by flexion limited to 45 degrees, but not limited to 30 degrees. 5. Prior to September 3, 2014, and since July 7, 2019, the service-connected bowel disability was manifested by moderate impairment, with disturbances of bowel function and occasional episodes of abdominal distress, but without frequent episodes of abdominal distress. CONCLUSIONS OF LAW 1. Prior to February 5, 2019, the criteria for entitlement to a disability rating higher than 20 percent for the service-connected right upper extremity neurological disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2019). 2. Prior to February 5, 2019, the criteria for entitlement to a disability rating higher than 20 percent for the service-connected left upper extremity neurological disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2019). 3. Since July 7, 2019, the criteria for a disability rating higher than 20 percent for the service-connected low back disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 4. Since July 7, 2019, the criteria for a disability rating higher than 10 percent for the service-connected left hip flexion disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2019). 5. Prior to September 3, 2014, the criteria for a disability rating of 10 percent for the service-connected bowel disability were met; the criteria for a rating higher than 10 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.114, Diagnostic Code 7319 (2019). 6. Since July 7, 2019, the criteria for a disability rating higher than 10 percent for the service-connected bowel disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.114, Diagnostic Code 7319 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from August 2001 to August 2011. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2020 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In September 2014, the Veteran presented testimony at a Board hearing conducted by a Veterans Law Judge who is no longer employed by the Board. She was offered a new hearing. In July 2019, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO in Anchorage. At the Board hearing, the Veteran was informed of the basis for the RO’s denial of her claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In an October 2019 decision, the Board denied the claims seeking higher ratings for the bilateral neurological disabilities of the upper extremities, for the cervical spine disability, and for the bowel disability for the period prior to September 3, 2014. The Board remanded, in pertinent part, the claims seeking increased ratings for the service-connected lumbar spine disability, left hip disability, and bowel disability for the period since July 7, 2019. The Veteran appealed that decision to the Veterans Court. In a July 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s October 2019 decision in part, and remanded the increased rating claims for (1, 2) the bilateral neurological disabilities of the upper extremities, prior to February 5, 2019, for (3) the cervical spine disability, prior to April 11, 2014, and for (4) the bowel disability, prior to September 3, 2014, to the Board for additional development consistent with the Joint Motion. The parties to the Joint Motion agreed that the Board’s denial of (1) entitlement to a rating higher than 20 percent, since April 11, 2014, for a cervical spine disability, (2) an initial rating higher than 10 percent, prior to July 7, 2019, for a lumbar spine disability, (3) an initial rating higher than 10 percent, prior to July 7, 2019, for a left hip disability, (4) an initial rating higher than 10 percent, prior to July 7, 2019, for the bowel disability, (5) a rating higher than 40 percent, since February 5, 2019, for right upper extremity radiculopathy, and (6) a rating higher than 30 percent, since February 5, 2019, for left upper extremity radiculopathy, were not in dispute and those issues should be dismissed. The issue of TDIU entitlement was not separately appealed but is being considered here as a component of the increased rating claim(s) in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Increased Ratings—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to an increased disability rating for the service-connected neurological disability of the right upper extremity, currently evaluated at 20 percent prior to February 5, 2019. Entitlement to an increased disability rating for the service-connected neurological disability of the left upper extremity, currently evaluated at 20 percent prior to February 5, 2019. The current appeal arises from a claim received at VA on September 10, 2014. In a March 2015 rating decision, VA granted service connection for “radiculopathy,” of the right and left upper extremity, associated with the service-connected cervical spine disability, and assigned initial disability ratings of 20 percent (each) under Diagnostic Code 8510, effective September 10, 2014. In a June 2020 rating decision, the ratings were increased to 40 percent for the right upper extremity, and 30 percent for the left upper extremity, effective February 5, 2019, the date of a VA examination. The parties to the Joint Motion agreed that the Board did not discuss significant evidence pertinent to the period prior to February 5, 2019. They noted that, in February 2014, the Veteran reported numbness and tingling in her arms which had gotten “much worse” in the last month. (February 25, 2014, treatment record from the 673rd Medical Group). At an April 2014 private treatment visit, she reported having “pins and needles” feeling in the bilateral arms and shoulders. (April 2, 2014, private treatment record from M. Maxwell, MD, PhD). At the September 2014 hearing, she reported having numbness and tingling in her upper extremities since approximately 2009. In May 2018, she reported “daily numbness and tingling in the bilateral arms and hands experienced with activities such as driving.” (May 30, 2018, Neurology Follow Up Encounter Note from Alaska Neurology Center). In June 2018, she reported that the “numbness and tingling has also persisted and increased over the months.” (June 28, 2018 private treatment record from Orthopedic Physicians). Under Diagnostic Codes 8510, 8610, and 8710, paralysis, neuritis, or neuralgia, of the upper radicular group is rated as follows: for complete paralysis with complete adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected, a rating of 70 percent for the major upper extremity, or 60 percent for the minor upper extremity is warranted. With incomplete paralysis, neuritis, or neuralgia that is severe, a rating of 50 percent is warranted for the major upper extremity, and a rating of 40 percent is warranted for the minor upper extremity. With incomplete paralysis, neuritis, or neuralgia that is moderate, a rating of 30 percent is warranted for the major upper extremity, and a rating of 30 percent is warranted for the minor upper extremity. With incomplete paralysis, neuritis, or neuralgia that is mild, a rating of 20 percent is warranted for either upper extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8610, and 8710. A March 2015 VA Examination reveals “mild” paresthesias of both upper extremities, which the examiner traced to involvement of the C5, C6, and C7 nerve roots. Overall, the severity of the Veteran’s radiculopathy of the bilateral upper extremities was found to be “mild” on both the left and the right (Record 03/10/2015). A February 2019 VA examination reveals mild intermittent pain, along with moderate paresthesias in both upper extremities. The examiner traced these symptoms to involvement of the C5, C6, and C7 nerve roots. Overall, the severity of the Veteran’s radiculopathy of the bilateral upper extremities was found to be moderate on both the left and the right (Record 02/05/2019). At the July 2019 hearing, the Veteran rated her radiculopathy as moderate (Record 07/07/2019). The terms “mild” and “moderate” are not defined in the rating schedule. They also do not have accepted medical definitions. The Board takes notice that the term “moderate” is generally used to describe something that is close to the average or mean, and to distinguish it from something that is on either extreme, which under Diagnostic Code 8510, would be “mild” or “severe.” It would be difficult to argue that symptoms that are present and persistent, and which cause functional impairment of earning capacity, are not at least “moderate.” However, in the situation presented here, the evidence cited by the parties does not indicate that the Veteran’s symptoms caused any impairment in earning capacity, or that they otherwise interfered with her activities of daily living. While she experienced symptoms while driving (numbness and tingling), there is no indication that these symptoms prevented her from driving or otherwise interfered with her ability to drive properly. The picture presented is one of symptoms which caused annoyance rather than functional impairment in earning capacity. While the February 2019 VA examiner assessed the severity as moderate, this is an adjudicative determination, not a medical determination. Therefore, the Board finds that her symptoms, while present and persistent during this period, were adequately assessed as “mild” by the July 2015 examiner. The Board agrees that moderate impairment was not substantiated. To summarize, the Board finds that, for the period prior to February 5, 2019, the service-connected neurological disabilities were mild and were not moderate, as contemplated by the rating schedule. In light of these findings of fact, the Board concludes that a disability rating higher than 20 percent for the service-connected disabilities is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (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). Entitlement to an increased disability rating for the service-connected low back disability, currently rated at 20 percent since July 7, 2019. The current appeal arises from a claim received at VA on April 13, 2011. In a September 2011 rating decision, VA granted service connection for “degenerative arthritis of the spine,” and assigned a rating of 10 percent under Diagnostic Code 5242, effective September 1, 2011, the day following service separation. In July 2019, on remand from the Board, VA increased the rating to 20 percent, effective July 7, 2019, corresponding to the date VA received the Veteran’s assertion that her low back disability had increased in severity. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include lumbosacral strain (Diagnostic Code 5237). A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires 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 rating of 10 percent is assigned with 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, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). A February 2019 VA Spine Examination, prior to the period on appeal, but still relevant, reveals that the Veteran complained of pain throughout her lower back, particularly in her S1 joint area. She also reported flare-ups, which resulted in increased pain and decreased range of motion. The examination report reflects abnormal range of motion, with forward flexion from zero to 80 degrees and extension from zero to 20 degrees. Tenderness to palpation was noted, but the Veteran was able to complete repetitive use testing without additional loss of range of motion. The examiner also determined that pain and lack of endurance would result in additional functional loss during a flare-up. Although the examiner did not estimate the degree of functional loss, the examination report indicates that the results of the physical evaluation were medically consistent with the Veteran’s statements. There was no guarding or muscle spasm, and straight leg raises tests were negative bilaterally. There was no evidence of radiculopathy in either lower extremity. There was no indication that the Veteran had been under physician-prescribed bedrest on account of her condition. Based on these findings, the examiner concluded that the Veteran’s service-connected lumbar spine disorder would affect her ability to work by preventing her from engaging in tasks related to physical labor such as walking, running, standing, bending, stooping, squatting, kneeling, and lifting. Her condition would not affect sedentary work such as typing, filing, and answering the telephone ( Record 02/06/2019). X-rays reveal rightward curvature of the lumbar spine with rotary component within the superior to middle spine. There were moderate degenerative changes to the lumbar spine and mild degenerative changes to the thoracic spine. At the July 2019 hearing, the Veteran reported that her range of motion in her lumbar spine had been reduced by pain. It has also affected her ability to twist her body (Record 07/07/2019). A March 2020 VA Spine Examination reveals a diagnosis of lumbar degenerative disc disease, to include scoliosis. Flares occur weekly, last a day, and are mild to moderate. The Veteran did not report any functional loss or impairment of the lumbar spine. Forward flexion was to 65 degrees, extension to 30 degrees, lateral flexion to 30 degrees, bilaterally, and rotation to 30 degrees, bilaterally. While pain was noted with motion, it did not result in functional loss. There was no additional functional loss after 3 repetitions. In addition to pain, the Veteran reported fatigue. With repeated use over a period of time, the examiner estimated that forward flexion would be reduced to 40 degrees; however, the remaining measurements were the same. There was no guarding or spasm noted. Testing for lower extremity radiculopathy was all negative. There were no associated neurological abnormalities or intervertebral disc syndrome. The impact on work was described as pain with prolonged standing, sitting, lifting, and bending (Record 06/16/2020). The parties to the Joint Motion did not address the lumbar spine disability, as it was remanded by the Board in October 2019, and, therefore, was not within the jurisdiction of the Veterans Court. After a review of all of the evidence, the Board finds that, since July 7, 2019, the criteria for a rating higher than 20 percent for the service-connected low back disability are not met. The criteria for a rating higher than 20 percent require forward flexion of the thoracolumbar spine to be limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Based on the evidence of record, these criteria are not met, and are not more nearly approximated than are the criteria for a rating of 20 percent. The Board understands that the Veteran’s back is painful, and that this pain is associated with all motion. However, all levels of the rating schedule for spine include pain. Thus, pain must affect some aspect of the normal working movements of the body” such as excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. This functional loss is measured by testing of range of motion in accordance with the rating schedule. In this case, the testing does not demonstrate functional loss greater than is compensated by the currently assigned rating. While the provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to compensable evaluation for her painful motion, such has already been assigned for the entire period. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. While the Veteran clearly believes she is entitled to a higher rating, she has not explained in terms of the rating schedule and criteria, how her symptomatology warrants a higher rating, and the evidence clearly indicates that it does not. To summarize, the Board finds that, most, the Veteran’s service-connected low back disability is manifested by range of forward flexion greater than 30 degrees, but not greater than 60 degrees. In light of these findings of fact, the Board concludes that a disability rating higher than 20 percent for the service-connected low back disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Entitlement to a disability rating higher than 10 percent for the service-connected left hip disability since July 7, 2019. The current appeal arises from a claim received at VA on April 13, 2011. In a September 2011 rating decision, VA granted service connection for “left hip femoral acetabular impingement syndrome (flexion),” and assigned a rating of 10 percent under Diagnostic Code 5252, effective September 1, 2011, the day following service separation. The rating schedule provides specific ratings for the various limitations of motion of the hip. Under Diagnostic Code 5252, 5252, limitation of flexion is accorded a rating of 40 percent when limited to 10 degrees. A rating of 30 percent is warranted when limited to 20 degrees. A rating of 20 percent is warranted when limited to 30 degrees. A rating of 10 percent is warranted when limited to 45 degrees. A July 2011 VA Hip Examination reveals the Veteran’s complaint of left hip pain. She stated that it will get irritated if she engages in too much physical activity. Pain will flare up for about a week before it returns to normal. She also denied swelling, redness, warmth, or weakness of the hip. She usually takes ibuprofen to treat the pain but will switch to acetaminophen during flare-ups. An X-ray of the Veteran’s left hip from December 2010 revealed small punctate calcific densities as sequelae of femoral acetabular impingement. Flexion was measured to 120 degrees, with abduction to 45 degrees and extension to 15 degrees. Range of motion was not reduced after three repetitions (Record 07/18/2011). A July 2015 VA Hip Examination reveals complaint of chronic pain in her left hip, with flare-ups following activities like jumping, and climbing stairs. She indicated that she will experience increased pain for approximately one week following these activities. The examination report reflection flexion from zero to 115 degrees with extension from zero to 15 degrees. External rotation was from zero to 50 degrees while internal rotation was measured from zero to 35 degrees. There was mild tenderness to palpation, but the Veteran was able to perform repetitive use testing with no additional loss of range of motion. However, the examiner concluded that pain, weakness, fatiguability, and incoordination would significantly limit functional ability during flare-ups, with flexion being reduced to 110 degrees, extension to 15 degrees, external rotation to 45 degrees, and internal rotation to 35 degrees. There was no evidence of ankylosis or malunion or nonunion of the femur, nor flail hip joint or leg length discrepancy. There was also nothing to indicate that the Veteran had ever undergone surgery in relation to her left hip condition. She was also not noted to use any assistive devices. Based on this evidence, the examiner concluded that the Veteran’s service-connected left hip condition would affect her ability to engage in physical labor involving tasks like walking, running, bending, lifting, carrying, pushing, and pulling. However, it would not affect tasks related to sedentary employment, such as typing, filing, and answering the telephone (Record 07/2//2015). At the July 2019 hearing, the Veteran said she cannot move the left hip as much as the right (Record 07/07/2019). A March 2020, VA Hip Examination reveals a diagnosis of femoral acetabular impingement syndrome. The Veteran reported gradual and progressive pain in the left hip without trauma or sentinel event. No flares were reported. Pain was reported but there was no functional loss resulting. Range of motion was from 0 to 125 degrees of flexion, defined as full flexion. There was no additional functional loss after three repetitions. Regarding repeated use over a period of time, the examiner was unable to determine range of motion without mere speculation. The claimant was not examined during repeated use over a period of time and could not describe or demonstrate the decrease range of motion with repeated use over time or during flare ups. The Veteran reported that, after repetitive use over time, the loss of range of motion is variable depending on how strenuously the joint is used. At its worst, the Veteran cannot move it due to pain and fatigue, but there are other times where loss of range of motion during repetitive use over time is minimal. Medical records, her medical history, the medical community at large, and all procurable material did not sufficiently identify previous range of motion during repetitive motion or flare ups. General medical knowledge of the claimant's conditions is insufficient to reasonably estimate range of motion for each plane of motion as there is great variability between claimants. The claimant subjectively estimates the range of motion is unaffected with repetitive use over time. Strength was full, without atrophy. There was no ankylosis. The impact on work was pain with prolonged standing and walking (Record 03/16/2020). The parties to the Joint Motion did not address the left hip disability, as it was remanded by the Board in October 2019, and, therefore, was not within the jurisdiction of the Veterans Court. After a review of all of the evidence, the Board finds that the criteria for a higher rating for the service-connected left hip disability are not met. In essence, the requirements for a higher rating ar based on limitation of motion. In order to warrant the next higher rating of 20 percent, the evidence would have to substantiate that flexion of the hip was limited to 30 degrees. This is clearly not shown. As noted above, pain is a significant factor in any musculoskeletal rating. However, to warrant a rating higher than 10 percent for painful flexion of the hip, the evidence must show that motion is limited to the extent specified in the rating schedule. This is not shown here. To summarize, the Board finds that the service-connected left hip disability is manifested by flexion limited to 45 degrees, but not limited to 30 degrees. In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent for the service-connected left hip disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. Entitlement to an increased disability rating the service-connected bowel disability, currently rated at 0 percent prior to September 3, 2014, and 10 percent since July 7, 2019. The current appeal arises from a claim received at VA on April 13, 2011. In a September 2011 rating decision, VA granted service connection for “irritable bowel syndrome,” and assigned an initial disability rating of 0 percent under Diagnostic Code 7319, effective September 1, 2011, the day following service separation. In a September 2015 rating decision, the disability rating was increased to 10 percent, effective July 22, 2015. In October 2019, the Board granted an earlier effective date of September 3, 2014, for the 10 percent rating, but denied a rating higher than 10 percent for that period, and denied any earlier effective date for a compensable rating. The parties to the Joint Motion did not address the bowel disability for the period since July 2019, as it was remanded by the Board in October 2019, and, therefore, was not within the jurisdiction of the Veterans Court. The intervening period, from September 3, 2014, to July 7, 2019, is not before the Board, as the rating for this period was not vacated by the Veterans Court. The issue vacated by the Veterans Court was limited to the period prior to September 3, 2014, and limited to entitlement to a compensable rating for that period. Thus, the Board will consider entitlement to a compensable rating prior to September 3, 2014, and the previously remanded issue of entitlement to a rating higher than 10 percent since July 7, 2019. The terms “bowel disability,” irritable bowel syndrome, and irritable colon syndrome, are used interchangeably in the evidence of record, in the pertinent regulations, and in this decision. Under Diagnostic Code 7319, irritable colon syndrome (spastic colitis, mucous colitis, etc.) is assigned a rating of 30 percent if severe, which is defined as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A rating of 10 percent is assigned if moderate, which is defined as frequent episodes of bowel disturbance with abdominal distress. For a mild condition, defined as disturbances of bowel function with occasional episodes of abdominal distress, a rating of 0 percent is appropriate. A July 2011 VA IBS Examination reveals complaint of primarily constipation. If the Veteran stayed on a routine, eating fiber, and exercising regularly, she would have one bowel movement per day. However, if she travels or gets off her routine she could not have a bowel movement for three days or so. When this occurs, she has to use laxatives. Although she experienced bloating and abdominal pain, the examiner found these symptoms were not related to constipation. Moreover, the Veteran denied experiencing diarrhea. Nonetheless, she will be forced to cancel plans about twice per month due to abdominal discomfort. There was no evidence of any other diagnosed gastrointestinal condition. Besides using laxatives and fiber, the Veteran was not found to be on additional treatment for constipation issues (Record 07/18/2011). A July 2015 VA IBS Examination reveals a diagnosis of IBS, with constipation predominant. The examination report reflects continued complaints, with the Veteran stating that it is easy for her to become constipated if she gets off her routine. When this happens, she can miss bowel movements for three days or so before being forced to use laxatives. She also claimed problems with bloating and abdominal pain, stating that she cancels activities about twice per month because of these symptoms. However, the only medications she used were laxatives and fiber for constipation. The examiner noted that these medications were used continually to control her conditions. The Veteran also claimed flare-ups a couple times per month, which resulted in gas and painful cramping, and caused her clothes to "stop fitting." She experienced frequent episodes of abdominal distress but denied weight loss, malnutrition, tumors, and other symptoms. Based on these findings, the examiner concluded that the Veteran's IBS affected her ability to work by causing occasional absenteeism (Record 07/28/2015). At the July 2019 hearing, the Veteran stated that her IBS causes severe cramps and bloating. She does not experience symptoms every day, but constipation is a big problem. Flare-ups can last for days. She says she has changed her diet and uses supplements (Record 07/07/2019). In a March 2020 VA Examination, the Veteran was diagnosed with irritable bowel syndrome. Continuous medication was required for treatment, but there was no history of surgical treatment. The Veteran complained of constipation without diarrhea. There were no episodes of bowel disturbance, abdominal distress, or exacerbations or attacks of the intestinal condition. There was no weight loss or malnutrition. There was no impact of the condition on the ability to work (Record 03/16/2020). As noted by the parties, at the 2014 Board hearing, the Veteran reported beginning a new supplement approximately nine months prior to the hearing. She indicated that, if she does not take the supplement, her IBS symptoms are a “daily problem.” She reported having constipation four to five days out of the week before she began taking the supplement. She reported having flare-ups that would last all day, during which she stayed in her office the whole day. The parties noted the Board’s finding that the Veteran’s report of constipation as an almost daily occurrence, with episodes four or five times per week stands in contrast to the statements reflected in the July 2011 VA examination report, which suggest that the Veteran was usually able to prevent constipation by adhering to her routine. As such, the Board determined that the hearing testimony contains “compelling evidence” that the Veteran’s condition had worsened by that time. The parties found that the Board erred by not addressing whether the Veteran’s testimony in September 2014 evidenced worsened IBS symptoms prior to that date given that the Veteran reported experiencing IBS symptoms daily and having constipation four to five days a week nine months prior to the hearing. After a review of all of the evidence, the Board finds that there is reasonable doubt regarding the date of onset of symptomatology warranting a rating of 10 percent. The Veteran’s testimony is that her daily routine of medication helped, but did not eliminate her symptoms. Moreover, if a diagnostic code does not specifically contemplate the effects of medication, the Board is required to discount the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). The fact that the Veteran began a daily routine of medication is persuasive evidence that she was having an ongoing problem prior to September 3, 2014, and prior to her hearing testimony. The Board will resolve all reasonable doubt in favor of a VA claimant. The Board finds that the date of claim for service connection is the earliest effective date that can be granted. That date is September 1, 2011, which is the date following discharge. See 38 U.S.C. § 5110(b)(1) (the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release). The application was received on April 13, 2011, prior to discharge, but within one year of discharge. Regarding the period since July 7, 2019, the Board finds that the criteria for a rating higher than 10 percent are not met. The next higher rating of 30 percent requires severe impairment, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is not shown by the evidence, which shows constipation without diarrhea, no episodes of bowel disturbance, and no episodes of abdominal distress. The Veteran’s statements do not significantly differ from the medical findings. Accordingly, the Board finds that the criteria for a rating of 30 percent are not met. To summarize, the Board finds that, prior to September 3, 2014, the criteria for a 10 percent rating for the service-connected bowel disorder, were met. However, a rating higher than 10 percent is not warranted for any portion of that period, and that question does not appear to be within the agreement of the parties, as they specified that the issue was “a 10% rating prior to September 2014.” The Board also finds that a rating higher than 10 percent is not warranted since July 7, 2019. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. 366, 371. REASONS FOR REMAND Entitlement to a disability rating higher than 10 percent for the service-connected neck disability prior to April 11, 2014. Entitlement to TDIU. The parties to the Joint Motion agreed that remand was warranted for the Board to obtain a new VA examination or medical opinion as to the Veteran’s cervical spine disorder that is adequate for rating purposes. At the July 2011 VA examination, the examiner diagnosed cervical degenerative disk disease and spondylosis, status post discectomy and fusion at C4-5 and C5-6. (July 2011 VA General Medical Examination report). The Veteran reported having flare-ups of neck pain up to seven times a month if she is more active. The examiner indicated that “[i]t would be speculation to estimate loss of motion during flare-ups.” Following active range-of-motion testing, the examiner found the Veteran’s neck flexion was to 45 degrees and extension was to 40 degrees. Following three repetitions, flexion was to 45 degrees and extension was to 42 degrees. The parties found the July 2011 VA examination was inadequate because the examiner did not provide an estimate as to the degrees of loss of range of motion during flare-ups or provide an explanation why such an estimate could not be provided, citing Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The parties also found that the July 2011 VA examination was inadequate because the examiner did not indicate if range-of-motion testing was conducted for active and passive motion and under weight-bearing and non-weight-bearing conditions, citing Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016). Therefore, remand was warranted for the Board to obtain a retrospective examination or medical opinion as to the Veteran’s cervical spine disability prior to April 11, 2014, citing Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court’s prior action with respect to the same claim). The separate issue of TDIU entitlement is inextricably intertwined and the proposed development will encompass that issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion as to the symptoms and impairment associated with the Veteran's cervical spine disability during the period prior to April 11, 2014. The claims file should be reviewed by the examiner. If the examiner determines that more information from the Veteran is necessary, a physical or virtual examination should be scheduled. The examiner is asked to consider the Veteran’s statements that she was having flare-ups of neck pain up to seven times a month if she is more active. The examiner is asked to provide the estimated degree of motion loss for this period in general, as well as during flares. The Veteran is competent to describe her symptoms. The examiner is also asked to estimate the Veteran’s active and passive range of motion during this period under weight-bearing and non-weight-bearing conditions. 2. Readjudicate the remanded claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.