Citation Nr: 21012948
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 15-31 045
DATE: March 8, 2021

ORDER

Entitlement to an initial 70 percent rating for the appeal period prior to June 7, 2016 for an adjustment disorder is granted. 

Entitlement to an initial compensable rating prior to November 9, 2016, and in excess of 50 percent thereafter, for headache syndrome is denied. 

Entitlement to an initial compensable rating prior to October 13, 2019, and in excess of 40 percent thereafter, for left hip trochanteric bursitis with limitation of flexion is denied.

Entitlement to an initial compensable rating prior to October 13, 2019, and in excess of 40 percent thereafter, for right hip trochanteric bursitis with limitation of flexion is denied.

Entitlement to an initial compensable rating prior to October 13, 2019, and in excess of 20 percent thereafter, for left hip trochanteric bursitis with impairment of the thigh is denied.

Entitlement to an initial rating in excess of 20 percent for right hip trochanteric bursitis with impairment of the thigh is denied.

Entitlement to an initial compensable rating prior to October 12, 2019, and in excess of 20 percent thereafter, for left ankle collateral sprain with tendonitis is denied. 

Entitlement to an initial compensable rating prior to October 12, 2019, and in excess of 20 percent thereafter, for right ankle collateral sprain with tendonitis, is denied. 

Entitlement to an initial rating in excess of 10 percent prior to October 20, 2019, and in excess of 20 percent thereafter, for left ulnar neuropathy is denied. 

Entitlement to an initial compensable rating prior to October 12, 2019, and in excess of 10 percent thereafter, for right wrist sprain is denied. 

Entitlement to an initial compensable rating for all linear scars head to toe (hereinafter “scars”) is denied. 

Entitlement to service connection for right upper extremity neuropathy is granted. 

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is dismissed. 

REMANDED

Entitlement to an initial rating in excess of 10 percent prior to October 20, 2019, and in excess of 40 percent thereafter, for lumbar strain with intervertebral disc syndrome (IVDS) is remanded.

Entitlement to an initial rating in excess of 10 percent prior to October 13, 2019, and in excess of 30 percent thereafter, for right knee meniscal tear with strain and osteoarthritis is remanded.

Entitlement to an initial rating in excess of 10 percent prior to October 13, 2019, and in excess of 30 percent thereafter, for left knee meniscal tear with strain and osteoarthritis, is remanded.

FINDINGS OF FACT

1. For the appeal period prior to June 7, 2016, the Veteran’s adjustment disorder more closely approximated occupational and social impairment with deficiencies in most areas without total occupational and social impairment. 

2. For the appeal period prior to November 9, 2016, the impairment associated with the Veteran’s headache syndrome have been productive of less frequent attacks. 

3. For the appeal period beginning on November 9, 2016, the Veteran is assigned a 50 percent rating for his headache syndrome, which is the maximum schedular rating under the VA rating schedule.

4. For the appeal period prior to October 13, 2019, the Veteran’s left hip trochanteric bursitis with limitation of flexion and impairment of the thigh were manifested by complaints of pain, and limitation of motion but has not been productive of flexion limited to 45 degrees or more, extension limited to 5 degrees, adduction limited so as to be unable to cross legs, rotation limited so as to be unable to toe-out more than 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, fail joint, or impairment of the femur.

5. For the appeal period prior to October 13, 2019, the Veteran’s right hip trochanteric bursitis with limitation of flexion and impairment of the thigh were manifested by complaints of pain, and limitation of motion but has not been productive of flexion limited to 45 degrees or more, extension limited to 5 degrees, adduction limited so as to be unable to cross legs, rotation limited so as to be unable to toe-out more than 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, fail joint, or impairment of the femur.

6. For the appeal period beginning on October 13, 2019, the Veteran is assigned a 40 percent rating for his left hip trochanteric bursitis with limitation of flexion, which is the maximum rating under the VA rating schedule. 

7. For the appeal period beginning on October 13, 2019, the Veteran is assigned a 40 percent rating for his right hip trochanteric bursitis with limitation of flexion, which is the maximum rating under the VA rating schedule. 

8. For the appeal period beginning on October 13, 2019, the Veteran is assigned a 20 percent rating for his left hip bursitis trochanteric with impairment to the thigh, which is the maximum rating under the VA rating schedule. 

9. For the appeal period beginning on October 13, 2019, the Veteran is assigned a 20 percent rating for his right hip trochanteric bursitis with impairment to the thigh, which is the maximum rating under the VA rating schedule. 

10. For the appeal period prior to October 12, 2019, the Veteran’s left ankle collateral sprain with tendonitis was manifested, at most, in a mild limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy.

11. For the appeal period beginning on October 12, 2019, the Veteran’s left ankle collateral sprain with tendonitis was manifested, at most, in a moderate limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy.

12. For the appeal period prior to October 12, 2019, the Veteran is assigned a 20 percent rating for his right ankle collateral sprain with tendonitis, which is the maximum rating under the VA rating schedule. 

13. For the appeal period beginning on October 12, 2019, the Veteran is assigned a 20 percent rating for his left ankle collateral sprain with tendonitis, which is the maximum rating under the VA rating schedule. 

14. For the appeal period prior to October 20, 2019, the Veteran’s left ulnar neuropathy has been manifested by mild incomplete paralysis of the ulnar nerve without the loss of reflexes and muscle atrophy.

15. For the appeal period beginning on October 20, 2019, the Veteran’s left ulnar neuropathy has been manifested as moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left upper extremity without muscle atrophy.

16. For the appeal period prior to October 12, 2019, the Veteran’s right wrist sprain was manifested with, at worst, dorsiflexion to 50 degrees, palmar flexion to 50 degrees, radial deviation to 45 degrees, and ulnar deviation to 45 degrees, without ankylosis.

17. For the appeal period beginning on October 12, 2019, the Veteran is assigned a 10 percent rating for his right wrist sprain, which is the maximum rating under the VA rating schedule. 

18. Throughout the entire period on appeal, the Veteran’s scars measured less than 144 square inches, were not painful, were not unstable, were not burn scars, and did not have associated underlying tissue damage; and were not scars that caused disfigurement of the head, face, or neck; and did not have characteristic lesions nor required any therapy, to include intermittent systemic therapy.

19. Resolving all reasonable doubt in favor of the Veteran, his right upper extremity neuropathy is etiologically related to his active service.

20. For the entire period on appeal, the Veteran has had a combined schedular 100 percent rating. 

CONCLUSIONS OF LAW

1. The criteria for assigning an initial rating of 70 percent for an adjustment disorder for the appeal period prior to June 7, 2016 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.125, 4.126, 4.130, Diagnostic Code 9440.

2. The criteria for an initial compensable rating for headache syndrome for the appeal period prior to November 9, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.124a, Diagnostic Code 8100. 

3. There is no legal basis for the assignment of a schedular rating in excess of 50 percent for headache syndrome for the appeal period beginning November 9, 2016.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.124a, Diagnostic Code 8100.

4. The criteria for an initial compensable rating prior to October 13, 2019, and in excess of 40 percent thereafter for left hip trochanteric bursitis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 

5. The criteria for an initial compensable rating prior to October 13, 2019, and in excess of 40 percent thereafter for right hip trochanteric bursitis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 

6. The criteria for an initial compensable rating prior to October 13, 2019, and in excess of 20 percent thereafter, for left hip trochanteric bursitis with impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253.

7. The criteria for an initial compensable rating prior to October 13, 2019, and in excess of 20 percent thereafter, for right hip trochanteric bursitis with impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253.

8. The criteria for an initial rating in excess of 10 percent for a left ankle collateral sprain with tendonitis prior to October 12, 2019, and in excess of 20 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271.

9. The criteria for an initial rating in excess of 10 percent for a right ankle collateral sprain prior to October 12, 2019, and in excess of 20 percent thereafter have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271.

10. The criteria for an initial rating in excess of 10 percent for left ulnar neuropathy prior to October 20, 2019, and in excess of 20 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.123, 4.124a, Diagnostic Code 8616. 

11. The criteria for an initial compensable rating for a right wrist sprain have not been met prior to October 12, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5215.

12. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for a right wrist sprain beginning October 12, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215.

13. The criteria for an initial compensable rating for scars have not been met.   38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1—4.14, 4.21, 4.118, Diagnostic Code 7805.

14. The criteria for service connection for right upper extremity neuropathy have been met.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

15. The Veteran’s claim of entitlement to a TDIU is moot.  Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 2000 to September 2004, and in the United States Navy from May 2008 to January 2014, to include service in Southwest Asia.  The Veteran’s awards and decorations for his service include a Combat Action Badge, among others. 

These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  Jurisdiction of this appeal is currently with the RO in San Diego, California.   

This case was most recently before the Board in September 2018, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  The case has now been returned to the Board for appellate action.

In November 2019, the Veteran withdrew his claim for an increased rating for obstructive sleep apnea.

In a rating decision dated in July 2020, the AOJ granted an increased rating for an adjustment disorder, and assigned a 100 percent rating beginning June 7, 2016.  Since this increase did not constitute a full grant of the benefits sought, the increased rating issue for an adjustment disorder prior to June 7, 2016 remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the increased rating issue for an adjustment disorder is recharacterized and listed as such on the first page of this decision.

The Board notes that in the same July 2020 rating decision, the AOJ granted service connection a right elbow disorder, effective January 28, 2014; which is considered a full grant of relief.  As such, the Board shall not address the claim any further.

The Board also notes that the Veteran’s claims for earlier effective dates prior to January 28, 2014 for the grant of service connection for obstructive sleep apnea, adjustment disorder with mixed anxiety and depressed mood, tinnitus, right wrist sprain, left ulnar neuropathy, right knee meniscal tear, left knee osteoarthritis, headaches, right hip trochanteric bursitis limitation of flexion, right hip trochanteric bursitis impairment of the thigh, left hip trochanteric bursitis limitation of flexion, left hip trochanteric bursitis impairment of the thigh, right lateral ankle sprain, left lateral ankle sprain, and linear scars from head to toe were denied in a Board decision dated September 19, 2018.  That Board decision was not appealed, and became final.  Then, in a July 2020 Supplemental Statement of the Case (SSOC), the RO addressed claims for earlier effective dates for the separate evaluation for left hip trochanteric bursitis with limitation of extension, right hip trochanteric bursitis with limitation of extension, left knee instability and right knee instability.  The Veteran did not file a notice of disagreement (NOD) or substantive appeal (VA Form 9) as to the July 2020 SSOC or to the July 2020 rating decision.

Unlike the NOD, a VA Form 9 is not jurisdictional, which means that VA may waive any issue concerning the timing or filing of a substantive appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  In this case, the Veteran failed to perfect his appeal of the denial of earlier effective dates for the separate evaluation for left hip trochanteric bursitis with limitation of extension, right hip trochanteric bursitis with limitation of extension, left knee instability and right knee instability, and the AOJ did not certify these issues to the Board.  In Percy, the Court held that by certifying an appeal to the Board and providing the appellant with a hearing concerning the relevant issues, VA waived objections concerning the adequacy of the appellant’s Form 9.  That is not the case here as to these two issues.  Consistent with the Court’s holding in Percy, the Board will not address these issues listed above as part of this appeal.

In August 2020, the Veteran’s attorney requested an additional 90 days to submit evidence and argument in support of the appeals. The Board granted this Motion for Extension of Time in an October 2020 letter. This requested time period has now expired. 

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.  It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms.  See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised.  See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4).  In the instant case, the claims file is absent any medical evidence submitted or associated with the claims file subsequent to the revised rating effective date of February 7, 2021.  Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran’s claims on appeal; and the appropriate criteria is discussed below. 

The Board also notes that the February 7, 2021 musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Codes 5215, 5252, 5253, 5271.  In other words, Diagnostic Codes 5215, 5252, 5253, and 5271 are the same both prior to and after February 7, 2021.  Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (February 7, 2021).  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id. 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  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 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”).]

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. Adjustment Disorder

The Veteran generally asserts that he is entitled to a higher rating for his adjustment disorder because his symptoms are more severe than contemplated by the currently assigned rating.  Specific argument in support of this appeal has not been provided.   

The Veteran is currently rated 30 percent prior to June 7, 2016 and 100 percent thereafter for an adjustment disorder.  38 C.F.R. § 4.130, Diagnostic Code 9440.  As the Veteran is in receipt of the schedular maximum rating for his adjustment disorder as of June 7, 2016, only the appeal period prior to that time remains on appeal.

Psychiatric disabilities are rated based on the General Rating Formula for Mental Disorders (General Formula) codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms.  “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.”  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5).  See Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002).  VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Under the General Rating Formula per 38 C.F.R. § 4.130, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. Diagnostic Code 9440.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material; forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships.  Id. 

The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all 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.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.   

The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms.  However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment.

The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score.  The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5.  The DSM-5 does not contain information regarding GAF scores.  Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5.  See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).  VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction.  See 80 Fed. Reg. 14,308 (Mar. 19, 2015).  In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in January 2017.  As such, the DSM-5 applies, and the GAF scores will not be considered.

A review of the record reveals that the Veteran has sought mental health treatment from VA and private facilities, as well as treatment for his other health needs.  To the extent that the Veteran’s treatment records contain information relevant to the severity of his mental health, to include mental health screenings, the Board will summarize this evidence.

Turning to the evidence, the medical evidence of record reflects that the Veteran endorsed psychiatric symptomatology that included a troubled marriage, difficulty socializing, irritability, agitation, serious and frequent suicidal ideation, violence or assaultiveness, chronic and nightly sleep disturbance, frequent insomnia, depression, fatigue, hopelessness and anhedonia. He also reported impaired impulse control, disorientation to time, anxiety, tension, anger, worry, rumination, fatigue, lack of motivation, mood lability, alcohol abuse, intermittent visual hallucinations, previous suicide attempts, increased absenteeism, decreased concentration, memory loss and poor social interactions. 

The Veteran was afforded a VA examination in March 2013.  At that time, he reported he was married, did not have children, and that his marriage was “not that good,” due to his mood and anger problems.  His marriage was described as “troubled.”  The Veteran stated he had a few good friends, but did not socialize much due to problems with irritability and agitation.  He denied a history of suicide attempts, and endorsed a history of violence or assaultiveness.  He reported he assaulted a man that irritated him, and that he frequently looked for fights following his first period of active service.  Psychiatric symptoms included nightly sleep disturbance, getting violent due to nightmares, frequent insomnia occurring three to four times per week, moderate depression, fatigue, suicidal ideation, hopelessness, anhedonia, irritability and impaired impulse control.  The examiner noted the Veteran was not currently interested in psychiatric treatment “despite his reports of serious and frequent suicidal ideation.”  

Upon mental status examination in the March 2013, the Veteran presented as clean and neatly groomed and was appropriately dressed. Psychomotor activity and speech were found to unremarkable and he was found to be cooperative, attentive, with a constricted affect, anxious mood. He was noted to be oriented to person and place, but not oriented to time, had an evasive thought process, unremarkable thought content, intact judgment, average intelligence, intact insight, and without delusions.  He had sleep impairment that was characterized as trouble falling asleep and staying asleep, due to physical pain and frequent disturbed dreams.  He did not have hallucinations nor have inappropriate behavior.  He did not have obsessive or ritualistic behaviors, panic attacks, or homicidal thoughts.  The Veteran endorsed frequent thoughts of suicide and passive gestures, without attempts.  He had fair impulse control.  The Veteran had episodes of violence that included a history of fighting and getting into physical altercations.  He was able to maintain minimum personal hygiene.  There were no problems with activities of daily living.  His memory was normal.  At the time of the examination, the Veteran was currently on limited duty in the Navy, and employed full time.  He had lost 36 weeks from work in the last 12-month period due to medical problems and the medical board process.  He was assigned to different duties, had decreased concentration, increased absenteeism, memory loss, and poor social interaction.  

The March 2013 VA examiner diagnosed adjustment disorder with mixed anxiety and depressed mood.  The examiner found the Veteran had moderately severe and frequent (daily) symptoms of anxiety and depression, tension, irritability, agitation, anger, worry, rumination, sleep disturbance, insomnia, anhedonia, fatigue, lack of motivation, and suicidal ideation; and noted that his symptoms caused clinically significant distress and impairment in psychosocial, occupational, and emotional functioning.  The examiner found the Veteran had reduced reliability and productivity due to his adjustment disorder that was characterized as problems with impulse control, low motivation, and mood lability that lead to psychosocial impairment and reduced reliability and productivity in a work setting. 

A March 2014 VA treatment record indicates that the Veteran reported he had a prior suicide attempt, when he put a gun to his head and pulled the trigger while believing the gun was loaded.  He endorsed symptoms of depression that included suicidal ideation, drinking alcohol “a lot,” up to one bottle of rum a day and intermittent visual hallucinations.  He described the visual hallucinations as seeing an Iraqi girl he had seen previously while serving in Iraq. 

A separate March 2014 VA treatment record indicates the Veteran presented to urgent care due to his depression seeking medication.  He reported he had been feeling “down” recently; had thoughts of suicide; denied plans for suicide, sleep impairment; and alcohol use.  He stated he had drunk a “bunch of alcohol,” and taken a “bunch of pills,” the year prior but had vomited and not required assistance.  He reported he lived with his wife and was unemployed. 

A separate March 2014 VA treatment record indicated the Veteran was not assessed to be at imminent risk for suicide at that time and endorsed passive suicidal ideation.

VA treatment records between March 2014 and May 2014 indicate the Veteran presented as generally vague, hesitant, or reticent to discussing his psychiatric symptoms, and to treatment for such.  Specifically, a May 2014 VA treatment record indicates the Veteran would not discuss symptoms of alcohol use.  Other VA treatment records from this time show the Veteran appeared hesitant to discuss symptoms of suicidal ideation and indicated he was uninterested in psychiatric therapy.  Moreover, he reported that he was unable to work or attend school regularly during this time. 

A June 2016 private psychiatric Disability Benefits Questionnaire (DBQ) by Dr. R.W. was submitted.  At that time, Dr. R.W. opined the Veteran had occupational and social impairment with deficiencies in most areas.  The Veteran reported he had not been able to regain positive social, intimate or peer relationships since separation from active service.  He reported he had no social network, mostly stayed at home, and was disconnected from his family and had prolonged difficulty with daily living, and social and work activity.  He reported he had difficulty maintaining consistent employment since 2014, had difficulty adjusting to college, and experienced prolonged depression, anxiety, anger conduct problems, disturbances of emotional and conduct symptoms, severe depression, lack of motivation, low energy, sleep problems, poor concentration and task ability, cognitive and social deficits, and continued aggression and verbal altercations.  The Veteran reported he self-medicated to some extent with alcohol and non-prescribed pain killers, but had been abstinent for a few years.  He reported he was currently in the process of divorce. 

The June 2016 provider noted that symptoms attributable to the Veteran’s adjustment disorder included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events and impairment of short and long term memory, for example, retention of only highly learned material while forgetting to complete tasks. The provider further noted a flattened affect, that speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, and gross impairment in thought processes or communication. The provider noted disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, grossly inappropriate behavior, persistent delusions or hallucinations, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, disorientation to time or place and recent suicidal and homicidal ideation, without current intentions or plans.  The Veteran felt he was currently able to adequately manage his financial affairs. 

The June 2016 provider noted that the Veteran verified he had not worked since he left military service in 2014, and was currently in school with difficulty adjusting and functioning in an academic setting.  Dr. R.W. noted the Veteran had ongoing functional impairments of daily living, social and employment activity.  The Veteran reported he had been married and divorced five times, did not have children, was currently single, and had not been able to regain positive social, intimate, peer or work relations since his active service.  More specifically, the Veteran reported he had no social network, limited friendships, self-isolated and was withdrawn from others, suspicious and distrusting of people in general, disconnected with family, and experienced intense social anxiety and panic attacks, especially in social, work, and public settings.  He stated he feared others and felt he was in danger, and did not go out in public.  He admitted he neglected household chores, personal hygiene, and had gone up to a week without showering or grooming himself.  He reported he only slept on average two to three hours a night.  Dr. R.W. noted the Veteran continued to present debilitating daily living and social and vocational limitations and symptoms based on his adjustment disorder.  Dr. R.W. opined the Veteran’s psychiatric symptoms appeared to completely prevent him from sustaining gainful employment activity.  

Upon mental status examination, the June 2016 provider noted that the Veteran presented with severe and persistent level mood and conduct adjustment, suicidal ideation and passive gestures, poor impulse control, nightly sleep disturbances, moderate symptoms of anxiety and depression and episodes of violent conduct. The provider further noted that the Veteran had chronic sleep impairment and disturbances affecting and preventing employability, nightmares, lack of sleep resulting in being unproductive, unfocused, extremely irritable, tendency to argue with coworkers, and would impact his ability to show up on time and stay on task, inability to adapt to stressful circumstances or efficiently meet quotas or deadlines at a job, angry outbursts with violent aggression in public, and the Veteran stated he did not believe he could last one day at work without a conflict; disturbances of motivation and mood and near-continuous anxiety and irritability. The provider further noted panic attacks occurring three to four times a week, depressed mood, lack of motivation, low energy, low frustration or stress tolerance, attention and concentration problems, chronic sleep impairment, psychomotor agitation or retardation and suicidal or homicidal ideation.  The Veteran stated that he never pursued any work activity due to feelings of anxiety, being down, anger towards others, and difficulty adjusting to the “civilian world.”  He added that he had difficulty getting out of bed, showering, or doing household chores.  The Veteran strongly felt that he would not have the motivation or energy to be effective at a job and would be too anxious to be around others, to include his family.  Dr. R.W. noted the Veteran continued to have suicidal and homicidal ideation, hallucinations, delusions, and visual hallucinations that impacted his ability to work and the Veteran continued to have invalidated fears and suspicions of other people in social and work-like environments.  Accordingly, Dr. R.W. opined the Veteran’s adjustment disorder continued to completely disable and preclude the Veteran from sustaining any form of substantial, gainful, employment activity from February 2013 to the present.  Additionally, Dr. R.W. noted that the Veteran’s psychiatric symptoms had progressively worsened relative to his inability to perform adequate daily living, social, and work activities.  

Of record is a November 2020 statement submitted by the Veteran.  In his statement, the Veteran reported he had difficulty finding gainful employment due to his mental health symptoms, sleep disorder, and physical disorders; and that he was unemployed from 2014 until March 2020.  He began working March 2020, part time, to care for dogs, but could not continue due to his pain.  He stated that since 2014, he had difficulty sleeping, had racing thoughts, paranoia, anxiety, nightmares, overwhelming feelings of suicidality, memory loss, fatigue, being easily distracted, difficulty focusing, difficulty with communication, avoidance of crowds and self-isolation, amotivation, mood swings, feelings of being overwhelmed, low stress tolerance, questionable personal hygiene and use of illegal medication to treat sleep problems.  He also reported having several headaches a week that required him to lay down, and resulted in dizziness, being light-headed, and blurred vision.  He had pins and needle feelings in his legs, fatigue during the day, difficulty gripping and lifting things, constant aching that is sometimes severe, inability to do household chores, difficulty standing or sitting prolonged periods due to back pain, difficulty with twisting and bending, and difficulty walking long distances. 

Based on the foregoing, prior to June 7, 2016, the Board finds that the Veteran’s service-connected adjustment disorder was manifested by occupational and social impairment with deficiencies in most areas and without total occupational and social impairment.  Therefore, a rating in excess of 70 percent prior to June 7, 2016 for an adjustment disorder is warranted.  

With regard to his occupational impairment, the Board finds the Veteran’s psychiatric symptoms were significant.  In that regard, the Board notes that the Veteran was persistently unemployed following his separation from active service.  Specifically, the only employment of record prior to June 7, 2016, was his active service with the United States Navy.  The Board notes that during his employment, the Veteran had missed 36 weeks of work in the past 12 months, and was shown to have significant occupational impairment.  He was shown to have decreased concentration, increased absenteeism, memory loss, and poor social interactions at work.  The examiner found that he his psychiatric symptoms lead to psychosocial impairment in the work setting.  Moreover, after separation from active service, the Veteran consistently reported unemployment and an inability to work or attend school regularly due to his psychiatric symptoms.  With regard to social impairment and impairment to family relations, the Board notes that the Veteran reported his marriage was strained, that he had been divorced five times, that he was generally stayed isolated and at home and only had a few friends with whom he maintained infrequent contact.  His psychiatric symptoms included difficulty socializing, irritability, agitation, violence, assaultiveness, anger, tension, anxiety, and mood liability; such suggests impairment to judgment.  Impairment to mood was shown as the Veteran reported anxiety and mood liability. Moreover, the Veteran reported suicide attempts, that include the use of a gun and overdosing on alcohol and pills and he continued to report suicidal and homicidal ideation.  Further, the Veteran was shown to have severe and frequent nightmares, depressive symptoms, hopelessness, and frequent suicidal ideation that negatively impaired his social functioning.  Impairment to thinking was shown as he also reported visual hallucinations that were intermittent, and was shown to have delusions.  Of significance during this time is the Veteran’s continued reticence to report and discuss psychiatric symptoms.  Specifically, the Veteran refused to discuss his symptoms and obtain treatment for such.  Additionally, the Veteran has reported difficulty with maintaining personal hygiene, and has been shown to not shower or change his clothes for up to a week.  The Board notes that the severity of the Veteran’s reported symptoms is significant, despite his uncommunicativeness.  Therefore, the Board finds that the Veteran’s psychiatric symptoms prior to June 7, 2016, associated with his service-connected adjustment disorder more closely approximate occupational and social deficiencies in most areas. 

However, the record reflects that the Veteran’s symptoms have not been consistent with total occupational and social impairment such that a 100 percent rating is warranted prior to June 7, 2016.  In that regard, despite the severity of his psychiatric symptoms, the Veteran maintained some occupational and social functioning.  Specifically, the Veteran was able to maintain minimal social relationships with his wife, children, and a few friends.  Moreover, the Veteran has not displayed persistent gross impairment in thought processes or communication, nor has the record shown that he is a persistent danger of hurting himself or others or grossly inappropriate behavior.  Specifically, VA treatment records indicate the Veteran shown not to be an imminent threat to himself or to others.  See March 2014 VA treatment record.  Although the Veteran has voiced some homicidal ideation, he has never had plants, intent, nor attempted homicide.  Moreover, there is no evidence that the Veteran has experienced persistent hallucinations or delusions, or obsessive rituals.  The Board notes that the Veteran was noted to have hallucinations, delusions, and obsessive rituals in a June 2016 private DBQ.  However, prior to June 2016, the Veteran did not have persistent hallucinations, delusions, nor any obsessive rituals.  Further, the Veteran has not displayed disorientation to place, or memory loss for names of close relatives, his prior occupations, or his own name.  The Board notes the Veteran was shown to have only one minor instance of disorientation to time.  Additionally, there is no evidence or allegation that he was unable to maintain minimal personal hygiene.  Although the Veteran has alleged he had difficulty with showering and household chores, sometimes did not shower for up to a week, and wore stained clothing; the Veteran has generally presented as adequately groomed.  Mental status examinations during the appeal period consistently found the Veteran’s grooming and hygiene to be appropriate, adequate or good.  As such, this is not a disability picture indicating total occupational and social impairment prior to June 7, 2016.

In assessing the severity of the adjustment disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether further staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected adjustment disorder; however, the Board finds that his symptomatology referable to such disability has been stable throughout the period on appeal.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

Accordingly, the Board finds that the preponderance of the evidence is for the assignment of an initial 70 percent rating, but not higher, for an adjustment disorder for the appeal period prior to June 7, 2016.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2. Headache Syndrome 

The Veteran generally asserts that he is entitled to higher ratings for his headache syndrome because his symptoms are more severe than contemplated by the currently assigned ratings.  Specifically, he asserts that he has debilitating headaches, prescription medication only alleviates the severity of the headaches, and that he has headaches three to four times a week that last many hours at a time; and that the headache pain is a 6 out of 10 pain intensity.  See August 2016 lay statement.  Moreover, he asserts that with headache pain he has to lay down and turn off the lights; and has symptoms that include dizziness, nausea, vomiting, metallic taste in his mouth, throbbing inside his mouth, and difficulty with physical activity.  Id.    

The Veteran’s headache syndrome is rated as noncompensable prior to November 9, 2016, and 50 percent thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Diagnostic Code 8100, a noncompensable rating is warranted for less frequent attacks than as follows.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months.  A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

Governing case law and regulations have not defined “prostrating.”  For reference, the Board notes that “prostration” is defined as “extreme exhaustion or powerlessness.”  See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012).  

The use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for a higher rating to be assigned).  Here, each of the criteria listed in the 50 percent rating must be met in order to warrant a 50 percent rating.  Tatum v. Shinseki, 23 Vet. App. 152 (2009).

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  At that time, he reported that he experienced headaches one to three times per week, that were typically occipital at the start and then radiated to the right retroocular area, lasting one to four days, pounding, and had occasional visual changes before the onset.  He treated with caffeine and ibuprofen.  He reported his headaches were not incapacitating.  The examiner noted the Veteran’s headache disorder impacted his ability to work due to increased absenteeism; and effected occupational activities due to decreased concentration and pain.  There were no effects on usual daily activities. 

Of record is a November 9, 2016 private headache examination by Dr. H.S.  At that time, the Veteran reported he had one to three headaches per week, lasting one to four days, that were described as pounding with occasional visual change prior to onset of headache pain.  The Veteran reported several headaches each week where he must lay down in a quiet room; and that the headaches had increased in both frequency and severity.  The Veteran experienced headache pain that was described as pulsating or throbbing head pain and pain localized to one side of the head.  He experienced non headache symptoms associated with headaches that included nausea, sensitivity to light, sensitivity to sound, disturbed concentration, and dizziness.  Typical headache pain lasted between 12 to 24 hours in duration, and was located on the right side of the head.  He did not have characteristic prostrating attacks of migraine headache pain.  The Veteran did not have very frequent prostrating and prolonged attacks of migraine headache pain. He was shown to have prostrating attacks of non-migraine headache pain that occurred more frequently than once per month.  He was shown to have very frequent prostrating and prolonged attacks of non-migraine headache pain.  Other pertinent findings included that the Veteran’s headaches occurred more frequently and were more severe due to his service-connected adjustment disorder, obstructive sleep apnea, and tinnitus.  Dr. H.S. noted that based on his interview with the Veteran, and a review of the claims file, the Veteran would need to leave early or miss work three or more days per month due to his headache disorder; and that the Veteran was required to lay down in a dark quiet room during headaches that occurred several times per month, lasting up to 24 hours.  Dr. H.S. remarked that the Veteran reported prostrating headaches occurring several times each month, requiring him to lay down in a dark quiet room; and that the headaches were aggravated by obstructive sleep apnea, adjustment disorder, and tinnitus.  Dr. H.S. noted the Veteran would miss one to two days of work per week, and would need to leave work two days per week due to his headache disorder; and that the Veteran would have more than three days per months where he would not stay focused for at least seven hours of the eight hour work day, and indicated this would occur “almost daily.”   

The Veteran was afforded another VA examination in October 2019.  At that time, he reported severe headaches that occur two to three times a week that result in an inability to get out of bed at times; causing sensitivity to light and noise, self-medication, and sleeping in a cool dark room.  He reported that he missed a lot of work due to his headache disorder.  He reported headache pain that was described as constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity.  Non headache symptoms associated with headaches included nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes.  Typical headache pain lasted more than two days in duration, and was located on both sides of the head.  The Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain that occurred once every month.  He had very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms found.   The examiner noted the Veteran’s headache disorder impacted his ability to work in that he must lay down in a quiet, dark, cool room, two to three times per week, and could not drive at all; and that he would miss work completely. 

The Board notes the November 2020 lay statement regarding his headache symptoms submitted by the Veteran discussed supra, and incorporates it herein. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has reported headache symptoms that are worse than those noted in the various VA examination reports of record.

For the foregoing reasons, the Board finds that an initial rating prior to November 9, 2016 for headache syndrome is not warranted.  In this regard, a next-higher rating of 30 percent requires migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months.  Here, there is no evidence that the Veteran experienced headaches to such a degree.  Specifically, at his March 2013 VA examination, the Veteran was not shown to have characteristic prostrating attacks.  The Board notes that the Veteran asserts that he had debilitating headaches, prescription medication only alleviates the severity of the headaches, that he has headaches three to four times a week that last many hours at a time and that the headache pain is a six out of 10 pain intensity.  See August 2016 statement.  Moreover, he asserts that with headache pain he has to lay down and turn off the lights, that he has symptoms that include dizziness, nausea, vomiting, metallic taste in his mouth, throbbing inside his mouth and that he has difficulty with physical activity.  Id. However, the Veteran also reported that his headaches were not incapacitating in the March 2013 VA examination and reported that his headaches had no impact on his daily activities. Therefore, a compensable rating is not warranted for the appeal period prior to November 9, 2016.

For the appeal period beginning November 9, 2016, the Board notes that there is no legal basis for the assignment a schedular rating in excess of 50 percent for a headache disorder.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. As noted above, Diagnostic Code 8100 provides a maximum schedular rating of 50 percent for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Board acknowledges the Veteran’s statement that his headache syndrome are more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for headaches.  However, these records do not address the specific rating criteria necessary to determine severity.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has considered whether a further staged rating under Hart, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a further staged rating is not warranted.  Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, supra.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial compensable rating prior to November 9, 2016, and in excess of 50 percent thereafter, and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

3. Left Hip Flexion, Right Hip Flexion, Left Hip Bursitis, Right Hip Bursitis

The Veteran generally asserts that he is entitled to higher ratings for his left hip flexion, right hip flexion, left hip bursitis, and right hip bursitis because his symptoms are more severe than contemplated by the currently assigned ratings.  Specific argument in support of this appeal has not been provided.  

The Veteran has been assigned an initial noncompensable rating prior to October 13, 2019 and a 40 percent rating thereafter for his left hip flexion and right hip flexion each under Diagnostic Code 5252.  38 C.F.R. § 4.71a, Diagnostic Code 5252.   The Veteran has been assigned an initial noncompensable rating prior to October 13, 2019 and 20 percent thereafter for his left hip bursitis under Diagnostic Code 5253.  38 C.F.R. § 4.71a, Diagnostic Code 5253.  The Veteran has been assigned an initial 20 percent rating for his right hip bursitis beginning on October 13, 2019 under Diagnostic Code 5253.  Id. 

Disabilities of the hip are evaluated under the General Rating Formula for Rating Diseases and Injuries of the Hip and Thigh.  38 C.F.R. § 4.71a, Diagnostic Codes 5250-5253.  The criteria for rating the Veteran’s disability are set forth in a General Rating Formula for evaluating diseases and injuries of the hip as follows:

Diagnostic Code 5250 provides a 60 percent rating for favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction; a 70 percent rating for intermediate ankylosis; and a 90 percent rating for extremely unfavorable ankylosis, with the foot not reaching the ground, or necessitating crutches.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5251, limitation of extension of the thigh, a 10 percent rating is assigned for extension limited to 5 degrees.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5252, limitation of flexion of the thigh, a 10 percent rating is assigned for flexion limited to 45 degrees.  38 C.F.R. § 4.71a.  A 20 percent disability rating is assigned where flexion is limited to 30 degrees; 30 percent where flexion is limited to 20 degrees; and 40 percent where flexion is limited to 10 degrees.  Id.

Under Diagnostic Code 5253, impairment of the thigh, a 10 percent rating is assigned for limitation of rotation of the affected leg with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed.  38 C.F.R. § 4.71a.  A 20 percent rating is assigned for limitation of abduction with motion lost beyond 10 degrees.  Id.

The Schedule provides that the normal flexion of the hip is from zero degrees to 125 degrees and normal abduction of the hip is from zero degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.  Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved.  Id. at Diagnostic Code 5003.

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  At that time, he reported the onset of bilateral groin and lateral hip pain in 2012.  He denied recent popping.  He reported he felt pain with prolonged weight-bearing and standing.  Upon physical examination, the Veteran was not shown to have deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of motion, locking episodes, effusion, episodes of dislocation or subluxation, nor flare-ups of either hip.  He was shown to have pain and tenderness bilaterally.  He had an antalgic gait without other evidence of abnormal weight-bearing.  There was not loss of a bone or part of a bone.  He did not have inflammatory arthritis.  Range of motion measurements of the left hip were as follows: flexion was to 110 degrees; extension was to 0 degrees; and abduction was to 35 degrees.  He could cross his left leg over his right and he could toe out greater than 15 degrees.  Range of motion measurements of the right hip were as follows: flexion was to 110 degrees; extension was to 0 degrees; abduction was to 35 degrees.  He could cross his right leg over his left and he could toe out greater than 15 degrees.  There was no objective evidence of pain following repetitive motion.  There was no additional limitations after three repetitions of range of motion.  The examiner diagnosed bilateral trochanteric bursitis and bilateral hip pain; and noted there were no significant effects on usually occupation and there were no effects on usual daily activities. 

The Veteran was afforded another VA examination in October 2019.  At that time, the Veteran described functional loss or functional impairment as difficulty standing, walking, sitting, driving, using stairs, sleeping, lying, crossing legs, lifting legs up, household chairs, and with yard work.  He reported he had limited range of motion in his hips; shooting pain that radiated through his hips and down his legs; stiffness bilaterally in the morning; constant popping and clicking noises bilaterally, and increased pain and stiffness with popping; and constant pain that was rated as a 10 out of 10 pain intensity bilaterally.  The Veteran endorsed daily flare-ups bilaterally that were caused by physical activity, sitting, standing, and driving, lasting 1 to 2 days in duration, and rated a 10 out of 10 pain intensity. Upon physical examination, range of motion measurements of the left hip were as follows: flexion was to 35 degrees; extension was to 10 degrees; abduction was to 20 degrees; adduction was to 10 degrees; external rotation was to 10 degrees; and internal rotation was to 10 degrees.  Range of motion measurements of the right hip were as follows: flexion was to 15 degrees; extension was to 15 degrees; abduction was to 10 degrees; adduction was to 5 degrees; external rotation was to 10 degrees; and internal rotation was to 10 degrees.  Adduction was limited such that the Veteran could not cross his legs bilaterally.  Range of motion itself contributed to a functional loss and shown as difficulty standing, walking, sitting, driving, using stairs, and lifting legs up bilaterally.  Pain was noted on examination and caused a functional loss bilaterally in all range of motions.  There was evidence of pain with weight-bearing bilaterally.  There was objective evidence of localized tenderness or pain on palpation of the anterior, moderate tenderness to palpation, and trochanteric bursitis bilaterally.  There was objective evidence of crepitus bilaterally. 

During the October 2019 VA examination, the Veteran was able to perform repetitive-use testing with at least three repetitions bilaterally; and there was additional loss of function or range of motion after three repetitions bilaterally.  Range of motion measurements of the left hip after repetition was as follows: flexion was to 30 degrees; extension was to 10 degrees; abduction was to 15 degrees; adduction was to 10 degrees; external rotation was to 10 degrees; and internal rotation was to 10 degrees.  Range of motion measurements of the right hip after repetition was as follows: flexion was to 10 degrees; extension was to 10 degrees; abduction was to 10 degrees; adduction was to 5 degrees; external rotation was to 10 degrees; and internal rotation was to 10 degrees.  Post-test adduction was limited such that the Veteran could not cross his legs bilaterally.  Pain, fatigue, weakness, and lack of endurance caused the functional loss with repetition.  The Veteran was not examined immediately after repetitive use over time; and the examination was medically consistent with his statements describing a functional loss with repetitive use over time bilaterally.  The examiner was able to describe in terms of range of motion as follows: for the left hip, flexion was to 15 degrees, extension was to 10 degrees, abduction was to 10 degrees, adduction was to 5 degrees, external rotation was to 5 degrees, and internal rotation was to 5 degrees; and for the right hip, flexion, extension, abduction, adduction, external rotation, and internal rotation were to 5 degrees each.  The Veteran could not cross his legs after repetition. 

The October 13, 2019 VA examiner noted that the Veteran was not examined during a flare-up; and the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups.  Pain, fatigue, weakness, and lack of endurance caused the functional loss during a flare-up.  The examiner was able to describe in terms of range of motion as follows: for the left hip, flexion was to 10 degrees, extension was to 5 degrees, abduction was to 5 degrees, adduction was to 0 degrees, external rotation was to 0 degrees, and internal rotation was to 0 degrees; for the right hip, flexion was to 0 degrees; extension was to 5 degrees; abduction was to 5 degrees; adduction was to 0 degrees; external rotation was to 0 degrees; and internal rotation was to 0 degrees.  The Veteran could not cross his legs during a flare-up. There were no additional factors shown to contribute to his disabilities.  Muscle strength testing showed active movement against some resistance in flexion, extension, and abduction bilaterally.  There was a reduction in muscle strength that was entirely due to the claimed conditions bilaterally.  There was no muscle atrophy.  There was no ankylosis.  The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms found.   The Veteran denied the use of any assistive device as a normal mode of locomotion.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The examiner noted the Veteran’s bilateral hips impacted his ability to work in that he had difficulty standing greater than 30 minutes; difficulty walking greater than 45 minutes; difficulty sitting greater than 15 minutes; difficulty driving greater than 30 minutes; and difficulty using stairs and lifting his legs.  There was evidence of pain on passive range of motion testing bilaterally.  There was evidence of pain when the joint was used in nonweight-bearing bilaterally.  

In a November 2020 statement, the Veteran reported he had pain in his hips that was severe and debilitating. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has reported hip symptoms that are worse than those noted in the various VA examination reports of record and there are no ranges of motion measurements documented in the VA treatment notes of record. 

For the foregoing reasons, the Board finds that the Veteran is not entitled initial compensable ratings for his left hip flexion, right hip flexion, and left hip bursitis prior to October 13, 2019.  In this regard, there is simply no evidence of record to suggest that the Veteran had limitation of flexion to 45 degrees of either hip; as such, a 10 percent rating is not warranted.  At his March 2013 VA examination, the Veteran reported pain, was shown to have tenderness and his flexion was to 110 degrees bilaterally.  Moreover, there was no additional loss of function or range of motion found after repetitive use testing and no X-ray evidence of arthritis in the hip.  Although pain was noted on flexion range of motion at his March 2013 VA examination, such did not result in or cause additional functional loss even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.   See also DeLuca, supra.  Although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell, supra.  Rather, 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.; see 38 C.F.R. § 4.40.   Here, the VA treatment records, and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, etc, that is not already contemplated by the assigned noncompensable rating.  Burton, supra; 38 C.F.R. § 4.59.  Accordingly, higher ratings are not warranted for the Veteran’s left hip flexion, right hip flexion, and left hip bursitis even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination for the appeal period prior to October 13, 2019.  

For the appeal period beginning on October 13, 2016, the Board concludes that there is no legal basis for the assignment a schedular rating in excess of 40 percent for his left hip flexion and right hip flexion; nor is he entitled to ratings in excess of 20 percent for his left hip bursitis and right hip bursitis.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5252, 5253. As noted above, Diagnostic Code 5252 provides a maximum schedular rating of 40 percent for limitation of flexion to 10 degrees; and Diagnostic Code 5253 provides a maximum schedular rating of 20 percent for limitation of abduction with motion lost beyond 10 degrees.  In this case, the Veteran’s service-connected bilateral hip flexion, and bilateral hip bursitis have been assigned ratings of 40 percent each and 20 percent each respectively beginning October 13, 2019, which are the maximum schedular ratings available. Therefore, higher schedular ratings cannot be granted.

With regard to abduction, the clinical evidence does not show that it was lost beyond 10 degrees.  The March 2013 VA examination report found abduction to be to beyond 10 degrees and the Veteran was able to cross his legs.  With regard to rotation, the clinical evidence does not show that the Veteran could not toe-out more than 15 degrees bilaterally.  The March 2013 VA examination report found external rotation to be to 50 degrees and internal rotation to be to 35 degrees in the left hip.  In addition, the March 2013 VA examination report found hip extension to be to greater than 5 degrees bilaterally.  Although pain was noted on range of motion in the March 2013 VA examination report, such did not result in or cause additional functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See also DeLuca, supra.  Therefore, a higher or separate rating cannot be granted for either hip based on limitation of abduction, rotation or extension.

The Board acknowledges the Veteran’s statement that his left hip flexion, right hip flexion, left hip bursitis, and right hip bursitis are more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his hips.  However, these records do not address the specific rating criteria necessary to substantiate a higher rating.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether further staged rating under Hart, supra, is appropriate for the Veteran’s service-connected left hip flexion, right hip flexion, left hip bursitis, and right hip bursitis; however, the Board finds that his symptomatology has been stable throughout each period on appeal.  Therefore, assigning further staged ratings for such disabilities is not warranted.  Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

In addition, the Board also considered the applicability of 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255.  However, a review of the record indicates that at no time during the pendency of the appeal has the Veteran’s hips been manifested by ankylosis, hip flail joint, or malunion or nonunion of the femur.  Accordingly, these Diagnostic Codes are not applicable.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In this case, the March 2013 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above.  Pain was noted on examination in the August 2013 VA examination report.  The effect of pain on range of motion is described above.  Regarding repeated use over time, the Board notes that March 2013 VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion.  Regarding flare-ups, the Board acknowledges that the March 2013 VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups.  However, the Board finds that all information required for rating purposes was provided.  The March 2013 VA examiner indicated that the Veteran reported worsening of symptoms with prolonged weight-bearing and standing. The October 2019 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. As both of the Veteran’s hips are damaged, it is not possible to measure range of motion in the undamaged joint. The Veteran reported flare-ups and the October 2019 VA examiner estimated the range of motion during such flare-ups. Therefore, the examinations of records are adequate for rating purposes.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for left hip flexion, right hip flexion, and left hip bursitis prior to October 13, 2019. In addition, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for his left hip flexion, in excess of 40 percent for right hip flexion, in excess of 20 percent for left hip bursitis, and in excess of 20 percent for right hip bursitis on a schedular basis for the appeal period beginning on October 13, 2019. Therefore, the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

4. Left Ankle and Right Ankle Collateral Strain with Tendonitis

The Veteran generally asserts that he is entitled to a higher rating for his left and right ankle collateral strain with tendonitis because his symptoms are more severe than contemplated by the currently assigned rating.  Specific argument in support of this appeal has not been provided. 

The Veteran has been assigned an initial noncompensable rating prior to October 12, 2019, and a 10 percent rating thereafter for his left and right ankle collateral strain with tendonitis, under Diagnostic Code 5271.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271.

Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The maximum rating of 20 percent disabling is available under Diagnostic Code 5271 where the limitation of motion in the ankle is marked.  Id. 

Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees.  38 C.F.R. § 4.71a, Plate II.  Notably, the terms “moderate” and “marked” are not defined under VA regulations.  Those terms also do not appear to have a generally accepted medical definition.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as “moderate” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy).

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  At that time, in pertinent part, the Veteran reported he had multiple ankle sprains in both ankles that first began in high school, and had several more during his active service.  He reported pain bilaterally, without locking, occasional popping, and symptoms of instability.  He reported prolonged walking and standing worsened his symptoms. Range of motion measurements of the left ankle were as follows: dorsiflexion was to 20 degrees; and plantar flexion was to 35 degrees.  Range of motion measurements of the right ankle were as follows: dorsiflexion was to 30 degrees; and plantar flexion was to 34 degrees.  There was no objective evidence of pain following repetitive motion; there was not additional limitations after three repetitions of range of motion.  Other significant physical findings included mild tibial posterior tendon (TTP) bilateral anterior talo-fibular ligament (ATFL) ankles; and positive right ankle talar tilt and anterior drawer. 

The Veteran was afforded another VA examination in October 12, 2019.  At that time, the Veteran reported difficulty with jogging or running, standing, walking, driving, using the stairs, moving foot, putting on shoes, grocery shopping, balance, household chores, and doing yard work.  He reported that he had constant popping and clicking, frequent stiffness, and sharp stabbing pains.  He reported constant pain was an 8 out of 10 pain intensity bilaterally.  He stated he had frequent swelling in both of his ankles.  He endorsed flare-ups that were caused by physical activity, sitting, standing, and walking, bilaterally; flare-ups occurred daily, lasted one to two days in duration, and were rated as a 10 out 10 pain intensity.  Range of motion measurements of the left ankle were as follows: dorsiflexion was to 5 degrees; and plantar flexion was to 10 degrees.  Range of motion measurements of the right ankle were as follows: dorsiflexion was to 5 degrees; and plantar flexion was to 10 degrees.  The abnormal range of motion was shown to contribute to a functional loss, as reported by the Veteran.  Pain was noted on dorsiflexion and plantar flexion.  There was objective evidence of localized tenderness or pain on palpation that was described as posterior, severe TTP, and related to tendonitis.  There was objective evidence of crepitus bilaterally.  The Veteran was able to perform repetitive-use testing; there was additional loss of function or range of motion after three repetitions bilaterally.  Range of motion measurements of the left ankle following repetitive-use testing was as follows: dorsiflexion was to 0 degrees; and plantar flexion was to 10 degrees.  Range of motion measurements of the right ankle following repetitive-use testing was as follows: dorsiflexion was to 0 degrees; and plantar flexion was to 10 degrees.  Factors that caused functional loss after repetitive-use testing included pain, fatigue, weakness, and lack of endurance bilaterally.  

The October 2019 VA examiner noted that the Veteran was not being examined immediately after repetitive use over time, and the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time bilaterally.  The examiner found pain, fatigue, weakness, and lack of endurance were factors that caused this functional loss bilaterally.  The examiner was able to describe this in range of motion, and found that range of motion measurements would be as follows: dorsiflexion to 0 degrees bilaterally; and plantar flexion to 5 degrees bilaterally.  The Veteran was not examined during a flare-up, and the examination was medically consistent with the Veteran’s statements described functional loss during a flare-up.  The examiner found that pain, fatigue, weakness, and lack of endurance were factors that caused this functional loss bilaterally.  The examiner was able to describe this in a range of motion, and found that range of motion measurements would be as follows: dorsiflexion to 0 degrees bilaterally; and plantar flexion to 0 degrees bilaterally. 

The October 2019 VA examiner determined that there were no additional factors contributing to disability found.  Muscle strength testing showed a reduction in muscle strength bilaterally that was entirely due to his left and right ankle disorders.  He was shown to have active movement against some resistance in plantar flexion bilaterally, and active movement against gravity in dorsiflexion bilaterally.  There was no muscle atrophy.  There was no ankylosis.  Ankle instability or dislocation was not suspected bilaterally.  The Veteran was shown to have “shin splints,” bilaterally, that affected range of motion of the ankle and knees.  Symptoms included pain over shins.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms found.  The Veteran endorsed the constant use of a cane as a normal mode of locomotion; and reported he used the cane for stability and balance for bilateral knee conditions.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The examiner noted that the Veteran’s left and right ankle disorders impacted his ability to work in that the disorders caused difficulty with jogging, running, standing, walking, driving, using the stairs, and moving foot.  There was evidence of pain on passive range of motion testing bilaterally.  There was evidence of pain when the joint was used in nonweight-bearing bilaterally.  

The Board notes the November 2020 statement regarding his ankle symptoms submitted by the Veteran discussed supra, and incorporates it herein. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has reported ankle symptoms that are worse than those noted in the various VA examination reports of record and there are no ranges of motion measurements documented in the VA treatment notes of record. 

For the foregoing reasons, the Board finds that the Veteran is not entitled to an initial compensable rating for his left or right ankle collateral strain with tendonitis prior to October 12, 2019.  In this regard, there is simply no evidence of record to suggest that the Veteran had moderate limitation of the left or right ankle; as such, a 10 percent rating is not warranted.  At his March 2013 VA examination, the Veteran reported pain, occasional popping, and symptoms of instability.  Moreover, there was no additional loss of function or range of motion found after repetitive use testing.  In addition, there was no objective evidence of pain following repetitive motion.  Other significant physical findings included TTP that was characterized as “mild,” bilateral STFL and positive right ankle talar tilt and anterior drawer.  Accordingly, the Board finds that the Veteran’s left ankle disorder and right ankle disorder manifested, at most, in a mild limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups.

Beginning October 12, 2019, the Veteran’s left and right ankle collateral sprain with tendonitis were rated as 20 percent disabling each under Diagnostic Code 5271 for marked limitation of motion. The Board notes that there is no legal basis for the assignment a schedular rating in excess of 20 percent for limitation of ankle motion  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271. As noted above, Diagnostic Code 5271 provides a maximum schedular rating of 20 percent for marked limitation of motion.

The Veteran’s belief that he is entitled to a higher rating for his left ankle disorder and right ankle disorder is outweighed by the objective medical findings of record.  That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to higher ratings.  Ultimately, on objective examination, range of motion measurements prior to October 12, 2019 showed, at worst, dorsiflexion to 20 degrees; and plantar flexion was to 35 degrees of the left ankle, and dorsiflexion was to 30 degrees; and plantar flexion was to 34 degrees of the right ankle.  There was no additional loss of motion after repetition.  Further, beginning October 12, 2019, range of motion measurements found on physical examination showed, at worst, dorsiflexion to 5 degrees and flexion to 20 degrees of each ankle bilaterally. Moreover, to the extent that the Veteran alleges that he is entitled to a higher rating due to pain and other symptoms reported, the Board notes that such symptoms are contemplated under the current ratings assigned. 

The Board acknowledges the Veteran’s statement that his left right and left ankle collateral sprain with tendonitis are more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his hips.  However, these records do not address the specific rating criteria necessary to substantiate a higher rating.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

In addition, the Board has considered whether a higher or separate rating could be awarded under an alternative diagnostic code for the Veteran’s left and right ankle collateral strain with tendonitis.  38 C.F.R. § 4.71a, Diagnostic Codes 5270 to 5274.   At his October 2019 VA examination, the examiner found that the Veteran does not exhibit ankylosis in the ankle.  As such, Diagnostic Code 5270 does not apply.  Similarly, it was not shown that the Veteran had, and has never been diagnosed with, either os calcis or astragalus, nor has he ever undergone an astragalectomy.  These findings preclude consideration of Diagnostic Codes 5272, 5273, and 5274, respectively.  Under 38 C.F.R. § 4.71a, there are no other diagnostic codes available to evaluate disabilities of the ankle.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp.  See Correia v. McDonald, supra and Sharp v. Shulkin, supra.  In this case, the March 2013 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above.  Pain was noted on examination in the March 2013 VA examination report.  The effect of pain on range of motion is described above.  Regarding repeated use over time, the Board notes that March 2013 VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion.  Regarding flare-ups, the Board acknowledges that the March 2013 VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups.  However, the Board finds that all information required for rating purposes was provided.  The March 2013 VA examiner indicated that the Veteran reported worsening of symptoms with prolonged walking and standing. The October 2019 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. As both of the Veteran’s ankles are damaged, it is not possible to measure range of motion in the undamaged joint. The Veteran reported flare-ups and the October 2019 VA examiner estimated the range of motion during such flare-ups. Therefore, the examinations of records are adequate for rating purposes.

The Board has also considered whether further staged rating under Hart, supra, is appropriate for the Veteran’s service-connected left ankle disorder and right ankle collateral sprain with tendonitis however, the Board finds that his symptomatology has been stable throughout each period on appeal.  Therefore, assigning further staged ratings for such disabilities is not warranted.  Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

Accordingly, the Board finds that a preponderance of the evidence is against the assignment of a compensable rating prior to October 12, 2019, and a rating in excess of 10 percent thereafter for left ankle and right ankle collateral sprain with tendonitis, and the claims are denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

5. Left Ulnar Neuropathy

The Veteran generally asserts that he is entitled to higher ratings for his left ulnar neuropathy because his symptoms are more severe than contemplated by the currently assigned ratings.  Specific argument in support of this appeal has not been provided. 

The Veteran has been assigned an initial rating of 10 percent prior to October 20, 2019, and 20 percent thereafter for his left ulnar neuropathy under Diagnostic Code 8616. 

The ratings differ under that code depending on whether the disabled side is major or minor.  The Veteran’s is left-handed and therefore his left side is the minor side.  See e.g. October 2019 VA examination report.  

Under Diagnostic Code 8616, neuritis, for the minor arm, mild incomplete paralysis of the ulnar nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated as 30 percent disabling.  Complete paralysis of the ulnar nerve warrants a 50 percent evaluation.  38 C.F.R. § 4.124a.  For perspective, complete paralysis contemplates the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened.”

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a. 

In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123.

The terms “mild,” “moderate,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  Although the use of the terms “mild,” “moderate,” and “severe” by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  In pertinent part, range of motion measurements of the left elbow showed flexion to 140 degrees; extension to 0 degrees; pronation to 90 degrees; and supination to 90 degrees.  There was no objective evidence of pain with active motion.  There was no objective evidence of pain following repetitive motion.  There was no additional limitations after three repetitions of range of motion.

An April 2013 VA treatment record indicates there was evidence of mild ulnar neuropathy at the left elbow.  The examiner reported tingling pain that was constant; pins and needles pain that caused his hands to go numb at times; and constant pain that was rated at an 8 or 9 out of 10 pain intensity. 

The Veteran was afforded another VA examination in October 20, 2019.  At that time, and in pertinent part, the Veteran was shown to have moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left upper extremity.  Muscle strength testing showed active movement against some resistance in left elbow flexion and extension.  There was no muscle atrophy.  Deep tendon reflex testing showed hypoactive reflexes in the left bicep; and absent reflexes in the left triceps.  Sensation to light touch testing results were normal for the shoulder area and decreased for the inner/outer forearm and hand/fingers.  He had trophic changes manifested as bilateral loss of hair, and smooth and shiny skin.  Phalen’s sign and Tinel’s sign testing was positive.  The examiner found the Veteran had moderate incomplete paralysis of the left ulnar nerve.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The examiner noted the Veteran’s left ulnar neuropathy impacted his ability to work in that he had decreased manual dexterity, difficulty holding and working with tools, and difficulty typing greater than 10 to 15 minutes. 

The Board notes the November 2020 lay statement regarding his neuropathy symptoms submitted by the Veteran discussed supra, and incorporates it herein. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has left ulnar neuropathy symptoms that are worse than those noted in the various VA examination reports of record and VA treatment record indicated above. 

For the foregoing reasons, the Board finds the Veteran is not entitled to an initial rating in excess of 10 percent for his left ulnar neuropathy for the appeal prior to October 20, 2019.  In this regard, there is simply no evidence of record to suggest that the Veteran had moderate incomplete paralysis of the left ulnar nerve.  At his March 2013 VA examination, the Veteran was shown to have no objective evidence of pain and he reported tingling pain that was constant, pins and needles pain that caused his hands to go numb at times and constant pain. Moreover, an April 2013 VA treatment record indicates his ulnar neuropathy of the left elbow was characterized as “mild.” The record was negative for, and the Veteran has not alleged, loss of reflexes and muscle atrophy. Accordingly, an initial rating in excess of 10 percent is not warranted for the Veteran’s left ulnar neuropathy for the appeal period prior to October 20, 2019.

For the appeal period beginning October 20, 2019, the Board finds the Veteran is not entitled to a rating in excess of 20 percent for his left ulnar neuropathy.  In this regard, there is simply no evidence of record to suggest the Veteran had severe incomplete paralysis of the left ulnar nerve.  At his October 2019 VA examination, the Veteran was shown to have moderate incomplete paralysis of his left ulnar nerve.  Moreover, symptoms reported were overall mostly moderate in nature, with severe intermittent pain. The record does not reflect, and the Veteran has not alleged, muscle atrophy. Accordingly, a rating in excess of 20 percent is not warranted for the Veteran’s left ulnar neuropathy beginning October 20, 2019. 

As noted above, the terms “mild,” “moderate,” and “severe” are not defined in the regulations.  Also noted, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  On one hand, the Veteran has described severe symptoms that included severe intermittent pain.  See October 2019 VA examination report.  Objective testing, however, does not demonstrate severe incomplete paralysis.  For example, muscle testing throughout the appeal period shows diminished muscle strength that was characterized as movement against some resistance without muscle atrophy.  That is, muscle strength was only mildly impaired.  Reflexes showed hypoactive reflexes in the bicep and absent reflexes in the triceps.  That is, reflexes were only moderately impaired beginning October 20, 2019.   Sensation testing were somewhat reduced in October 2019, but still present.  

The Board finds that mild muscle impairment with decreased sensory abilities as of October 2019 does not constitute “severe incomplete paralysis” and finding otherwise in the context of Diagnostic Code 8516 would not be “equitable and just.”  See 38 C.F.R. § 4.6.  Therefore, the Board weighs the objective findings of record against the Veteran’s assessment of his self-reported severity in his left ulnar neuropathy, and finds that the symptoms discussed are not so severe as to warrant a higher rating of 30 percent at any point in the appeal.  

The Board acknowledges the Veteran’s statement that his left ulnar neuropathy is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his neuropathy.  However, these records do not address the specific rating criteria necessary to substantiate a higher rating.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether further staged rating under Hart, supra, is appropriate for the Veteran’s service-connected left ulnar neuropathy; however, the Board finds that his symptomatology has been stable throughout each period on appeal.  Therefore, assigning further staged ratings for such disability is not warranted.  Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to October 20, 2019, and in excess of 20 percent thereafter, for left ulnar neuropathy, and the claim is denied.   38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

6. Right Wrist Sprain

The Veteran generally asserts that he is entitled to higher ratings for his right wrist sprain because his symptoms are more severe than contemplated by the currently assigned ratings.  Specific argument in support of this appeal has not been provided. 

The Veteran has been assigned an initial noncompensable rating prior to October 12, 2019, and a 10 percent thereafter for his right wrist sprain under Diagnostic Code 5215. 

Diagnostic Code 5215 addresses the wrist joint motion and allows for a single 10 percent rating if dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm.  38 C.F.R. § 4.71a.  

Diagnostic Code 5214 allows for higher ratings for wrist limitation where ankylosis is shown.  Unfavorable ankylosis, in any degree of palmar flexion or with ulnar and radial deviation warrants a 50 percent rating in the major extremity.  Ankylosis in any other person, except favorable, warrants a 40 percent rating in the major extremity.  Favorable ankylosis in 20 degree to 30 degree dorsiflexion warrants a 30 percent rating in the major extremity.  38 C.F.R. § 4.71a, Diagnostic Code 5214.

Normal ranges of motion of the wrist are dorsiflexion from zero degrees to 70 degrees, and palmar flexion from zero degrees to 80 degrees.  38 C.F.R. § 4.71, Plate I.

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  At that time, he reported he had continued pain on the ulnar side of the right wrist. Upon physical examination, the examiner noted the Veteran had TTP over distal ulna without crepitus; and pain with radial and ulnar deviation, with pain that was worse with ulnar deviation on the right wrist.  Range of motion measurements were as follows: dorsiflexion was to 50 degrees; palmar flexion was to 50 degrees; radial deviation was to 45 degrees; and ulnar deviation was to 45 degrees.  There was no objective evidence of pain following repetitive motion.  There was no additional limitations after three repetitions of range of motion. The examiner diagnosed right wrist sprain; and noted there were no significant effects on usually occupation and there were no effects on usual daily activities.

The Veteran was afforded another VA examination in October 12, 2019.  At that time, the Veteran endorsed flare-ups of his right wrist.  He described functional loss or functional impairment as difficulty cooking, lifting or carrying, writing, using a computer, rotating wrist, and playing sports.  He reported constant pain that was rated as an 8 out of 10 pain intensity; painful clicking and popping; increased weakness; and trouble flexing his wrist up and down.  The Veteran endorsed flare-ups that were caused by physical activity, lifting, pushing or pulling objects, and putting pressure on his wrist, that occurred daily, and lasted one to two days in duration; and he rated the pain as a 10 out of 10 pain intensity during flare-ups. Upon physical examination, range of motion measurements were as follows: palmar flexion was to 10 degrees; dorsiflexion was to 20 degrees; ulnar deviation was to 20 degrees; and radial deviation was to 5 degrees.  Range of motion itself contributed to a functional loss and shown as difficulty cooking, lifting or carrying, writing, using a computer, rotating wrist, and playing sports.  Pain was noted on examination and caused a functional loss in all range of motions.  There was evidence of pain with weight-bearing.  There was no objective evidence of localized tenderness or pain on palpation.  There was objective evidence of crepitus. 

The October 2019 VA examination found that the Veteran was able to perform repetitive-use testing with at least three repetitions; and there was additional loss of function or range of motion after three repetitions.  Range of motions measurements after repetition was as follows: palmar flexion was to 10 degrees; dorsiflexion was to 10 degrees; ulnar deviation was to 10 degrees; and radial deviation was to 5 degrees.  Pain, fatigue, weakness, and lack of endurance caused the functional loss with repetition.  The Veteran was not examined immediately after repetitive use over time; and the examination was medically consistent with his statements describing a functional loss with repetitive use over time.  The examiner was able to describe in terms of range of motion as follows: palmar flexion, dorsiflexion, ulnar deviation, and radial deviation were to 5 degrees each. 

The October 2019 VA examiner noted that the Veteran was not examined during a flare-up; and the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups.  Pain, fatigue, weakness, and lack of endurance caused the functional loss during a flare-up.  The examiner was able to describe in terms of range of motion as follows: palmar flexion, dorsiflexion, ulnar deviation, and radial deviation were to 0 degrees each.  There were no additional factors shown to contribute to his right wrist sprain.  Muscle strength testing showed active movement against some resistance in flexion and extension.  There was a reduction in muscle strength that was entirely due to the right wrist sprain.  There was no muscle atrophy.  There was no ankylosis.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms found.  The Veteran denied the use of any assistive device as a normal mode of locomotion.  Imaging studies did not document degenerative or traumatic arthritis.  The examiner noted the Veteran’s right wrist sprain impacted his ability to work in that he had difficulty cooking, lifting or carrying, writing, and using a computer.  There was evidence of pain on passive range of motion testing.  There was evidence of pain when the joint was used in nonweight-bearing.  

The Board notes the November 2020 lay statement regarding his wrist symptoms submitted by the Veteran discussed supra, and incorporates it herein. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has reported right wrist symptoms that are worse than those noted in the various VA examination reports of record and there are no ranges of motion measurements documented in the VA treatment notes of record. 

For the foregoing reasons, the Board finds the Veteran is not entitled to an initial compensable rating for his right wrist sprain prior to October 12, 2019.  In this regard, there is simply no evidence of record to suggest that the Veteran had limitation of dorsiflexion to less than 15 degrees, or palmar flexion that was limited in line with the forearm.  At his March 2013 VA examination, the Veteran reported pain.  His dorsiflexion and palmar flexion were to 50 degrees each.  Moreover, there was no additional loss of function or range of motion found after repetitive use testing.  Although pain was noted on flexion range of motion at his March 2013 VA examination, such did not result in or cause additional functional loss even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.   See also DeLuca, supra.  Although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell, supra.  Rather, 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.; see 38 C.F.R. § 4.40.   Here, the VA treatment records and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, etc, that is not already contemplated by the assigned noncompensable rating.  Burton, supra; 38 C.F.R. § 4.59.  Accordingly, an initial compensable rating is not warranted for the Veteran’s right wrist sprain even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination.  

For the appeal period beginning October 12, 2019, the Board concludes that there is no legal basis for the assignment a schedular rating in excess of 10 percent for his right wrist sprain.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5214, 5215. As noted above, Diagnostic Code 5215 provides a maximum schedular rating of 10 percent for dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. Therefore, a rating in excess of 10 percent for a right wrist sprain for the appeal beginning on October 12 ,2019 is not warranted.

In addition, the Board also considered the applicability of 38 C.F.R. § 4.71a, Diagnostic Code 5214.  However, a review of the record indicates that at no time during the pendency of the appeal has the Veteran’s right wrist has been manifested by ankylosis.  Accordingly, this Diagnostic Code is not applicable.

The Board acknowledges the Veteran’s statement that his right wrist strain is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his wrist.  However, these records do not address the specific rating criteria necessary to substantiate a higher rating.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether further staged rating under Hart, supra, is appropriate for the Veteran’s service-connected right wrist sprain; however, the Board finds that his symptomatology has been stable throughout each period on appeal.  Therefore, assigning further staged ratings for such disability is not warranted.  Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp.  See Correia v. McDonald, supra, and Sharp v. Shulkin, supra.  In this case, the March 2013 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above.  Pain was noted on examination in the March 2013 VA examination report.  The effect of pain on range of motion is described above.  Regarding repeated use over time, the Board notes that March 2013 VA examiner conducted repetitive-use testing and concluded that there was no additional limitation in range of motion.  Regarding flare-ups, the Board acknowledges that the March 2013 VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups.  However, the Board finds that all information required for rating purposes was provided.  The March 2013 VA examiner indicated that the Veteran reported worsening of symptoms with prolonged weight-bearing and standing. The October 2019 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. As both of the Veteran’s wrists are damaged, it is not possible to measure range of motion in the undamaged joint. The Veteran reported flare-ups and the October 2019 VA examiner estimated the range of motion during such flare-ups. Therefore, the examinations of records are adequate for rating purposes.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for right wrist sprain prior to October 12, 2019, and in excess of 10 percent thereafter and the claim is denied.   38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

7. Scars

The Veteran generally asserts that he is entitled to a higher rating for his scars because his symptoms are more severe than contemplated by the currently assigned ratings.  Specific argument in support of this appeal has not been provided. 

The Veteran has been assigned an initial noncompensable rating for his scars under Diagnostic Code 7805.   38 C.F.R. § 4.118.

Effective October 23, 2008, the criteria for rating skin / scar disabilities were revised.  See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4).  However, the October 2008 amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria.  38 C.F.R. § 4.118 (after October 2008).  In the present case, the Veteran’s increased rating claims stem from a claim filed in January 2013, with an appellate period from January 2014, subsequent to the October 2008 effective date for these amendments.  Therefore, the October 2008 skin criteria clearly apply to the Veteran’s scars on appeal. 

Effective August 13, 2018, prior to the filing of this appeal, the criteria for rating skin / scar disabilities were again revised.  See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018).  The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”  83 Fed. Reg. at 32593.  In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran.  See generally VAOPGCPREC 3-2000, 7-2003.  As noted above, the Veteran’s increased rating claim stems from a claim for service connection for a neck disorder that was filed in January 2013.  Thus, the increased rating claim was pending prior to the August 13, 2018 revisions.  As such, the Veteran’s increased rating claim for his scars will also be considered under the criteria in effect after August 13, 2018.  See again 83 Fed. Reg. at 32593 (emphasis added).

The August 13, 2018 skin amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity.  In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved.  If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used.  See 38 C.F.R. § 4.118(b) (August 13, 2018).  

However, the August 13, 2018 skin amendments presented no changes to the rating criteria for Diagnostic Codes 7800, 7804, and 7805.  In other words, Diagnostic Codes 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018.  Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018).  Finally, both prior to and after August 13, 2018, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804.

Under Diagnostic Code 7802, Burn Scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater.  38 C.F.R. § 4.118.

Note (1) to Diagnostic Code 7802: 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) to Diagnostic Code 7802: A separation 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 evaluation under § 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 Diagnostic Code 7804, Scar(s), unstable or painful: a 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A 30 percent rating is warranted for five or more scars that are unstable or painful.  38 C.F.R. § 4.118.

Note (1) to Diagnostic Code 7804: An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 

Note (2) to Diagnostic Code 7804: If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 

Note (3) to Diagnostic Code 7804: Scars evaluated under diagnostic codes 7800 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.

Under Diagnostic Code 7805, Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804, a noncompensable rating is warranted for no more than topical therapy required over the past 12-month period and at least one of the following, characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected; or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability.  This rating instruction does not apply to Diagnostic Code 7824. 

A 10 percent rating is warranted for at least one of the following, characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 

Turning to the evidence of record, the Veteran was afforded a VA examination in March 2013.  At that time, the Veteran was shown to have scars from multiple knee surgeries, as well as from minor trauma and cellulitis on his legs and tailbone.  None were found to be painful or unstable. Upon physical examination, the Veteran’s scars on the right anterior shin were measured as four by one cm, and two by one cm; the scar on the dorsum of the great toe joint measured two cm by two cm; and the scars on the tailbone area totaled approximately three cm by three cm.  The scars were not painful; with no signs of skin breakdown; superficial and not deep; without inflammation or edema; without keloid formation; and the skin was not indurated or inflexible.  The contour was not elevated or depressed on palpation; the scars were not adherent to underlying tissue; and were hyperpigmented compared to surround tissues; without underlying soft tissue loss; and there were no other disabling effects.  The examiner found the scars did not impact his ability to work; and there were no effects of the problem on usual daily activities. 

The Veteran was afforded a VA examination in October 2019.  At that time, the Veteran reported that he began to notice pain in his knees during active service, and had multiple surgeries on his knees.  He reported he developed cellulitis on his left foot during active service.  The conditions had remained the same. Upon physical examination, the Veteran was shown to have four scars located on his right knee, left knee, right shin, and left foot.  The Veteran had scars on the trunk or extremities, but did not have scars or disfigurement of the head, face, or neck.  None of the scars of the trunk or extremities were painful, unstable, nor with frequent loss of covering of skin over the scars; and none of the scars were due to burns.  The Veteran’s scars of the right lower extremity (right knee) measured one centimeter (cm) by one cm, and two cms by one cm.  The Veteran’s scars of the left lower extremity measured one cm by one cm, one cm by one cm, one cm by .5 cm, and four cms by .5 cm.  The scars did not have underlying tissue damage.  The scars without underlying tissue damage approximated a total area of two cm squared of the right lower extremity, and four and a half cm of the left lower extremity.  None of the scars resulted in limitation of motion.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The examiner found the Veteran’s scars did not impact his ability to work. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities.  However, there is no indication from the treatment notes of record that the Veteran has reported scar symptoms that are worse than those noted in the various VA examination reports of record. 

For the foregoing reasons, the Board finds the Veteran is not entitled to an initial compensable rating for his scars at any period on appeal.  In this regard, there is simply no evidence of record to suggest that the Veteran had one or two scars that are unstable or painful; or at least one of the following, characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period.  At his March 2013 VA examination, the Veteran was shown to have scars that were not painful nor unstable; did not affect his head, face, or neck; were not due to burns; did not have underlying soft tissue damage; and did not have characteristic lesions nor required any therapy, to include intermittent systemic therapy.  At his October 2019 VA examination, the Veteran was shown to have scars that were again, not painful nor unstable; did not affect his head, face, or neck; were not due to burns; did not have underlying soft tissue damage; and did not have characteristic lesions nor required any therapy, to include intermittent systemic therapy.  Rather, the Veteran has been shown to have scars, that were essentially asymptomatic; as a result of surgeries and other trauma; that did not require any treatment; and measured less than 144 square inches.  Additionally, under Diagnostic Code 7805, the Board notes there was no change under the previous or amended rating criteria for the skin.  Upon review, a 10 percent rating is not warranted under Diagnostic Code 7805 because the scars did not result in any additional disabling effects.  Therefore, a higher rating for his scars is not warranted at any time.  See 38 C.F.R. § 4.118.  

Additionally, the Board finds that an initial compensable rating under Diagnostic Code 7804 for his scars is not warranted.  In this regard, as noted above, the Veteran has been shown to have one scar that was painful, not unstable and measured less than 144 square inches without any functional limitation or underlying tissue damage. The Veteran’s scars have not been shown to be both painful and unstable and the Veteran does not allege that his scar is both painful and unstable.  Id. Moreover, the Veteran does not have burn scars, or scars that affect the head, face, or neck; nor does his scar have associated underlying tissue damage.  Thus, a separate rating is not warranted under Diagnostic Codes 7800 or 7801.  Id.

The Board acknowledges the Veteran’s statement that his scars are more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  See, e.g., Layno v. Brown, supra and Grottveit v. Brown, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for an initial compensable rating have been met.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his scars.  However, these records do not address the specific rating criteria necessary to substantiate a higher rating.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, supra.  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran’s service-connected scars; however, the Board finds that his symptomatology has been stable throughout the period on appeal.  Therefore, assigning a staged rating for such disability is not warranted.  Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for his scars, and the claim is denied.   38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Service Connection 

The Veteran generally assert that he has right upper extremity numbness as a result of his active service.  Specific argument in support of this appeal has not been provided.

Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110.  Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Board notes that in February 2013, while the Veteran was still on active service, the Veteran complained of bilateral upper extremity numbness pain and asserted that such condition was caused by, or aggravated by, his active service.  The Veteran has maintained that those symptoms continued since that time and he is competent to report such.  Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  The Board finds the Veteran to be credible in that respect.

The Veteran was afforded a VA examination in October 2019.  At that time, the examiner diagnosed bilateral upper extremity neuropathy and bilateral upper peripheral neuropathy.  In pertinent part, the Veteran reported he gradually noticed having increased tingling pain in his bilateral upper and lower extremities, and more frequent numbness.  He was unsure when the condition began, reported the tingling pain was constant and that he had a “pins and needles” feeling that would cause his hands to go numb at times.  He reported constant pain of eight to nine pain intensity in the extremities. The examiner opined that the Veteran’s right upper extremity neuropathy was at least as likely as not incurred in or caused by active service.  In that regard, the examiner noted that the Veteran did not have an ulnar neuropathy or any other peripheral neuropathy prior to enlistment, and that he had complaints noted in April 2013 and March 2014 service treatment records.  Further, the examiner noted that although there was no complaint noted on examination in May 2014, the issue persists to the present. 

The Board finds the October 2019 VA examination opinion adequate to decide the claim.  In that regard, the examiner included an interview with the Veteran, a review of the record, and a full physical examination of the Veteran.  In addition, the October 2019 VA examiner provided a thorough review of the Veteran’s history and medical records, and is supported the ultimate conclusion that the Veteran’s right upper neuropathy had its onset in service, and that the Veteran has continued to experience such symptoms since when opining that his right upper extremity neuropathy was etiologically related to service.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record.

In sum, the Veteran has competently and credibly reported that he began experiencing symptoms that were attributed to a later diagnosis of right upper extremity neuropathy during his active service and since.  The Veteran has a current diagnoses of right upper extremity neuropathy.  There is a probative VA medical opinion indicating the Veteran’s right upper extremity neuropathy is more likely than not as a result of his active service. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim.  Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).

Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for right upper extremity neuropathy is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Entitlement to a TDIU 

The Veteran contends that his service-connected disabilities render him unable to obtain or follow substantially gainful employment.  Specific argument in support of this appeal has not been provided.  

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  See 38 C.F.R. § 4.16(b).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.”  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities.  Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment.  Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013).

In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value.  The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169.  The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

The Board is mindful that under 38 C.F.R. § 4.16(a), marginal employment shall not be considered substantially gainful employment.  Marginal employment shall be found if a veteran’s income does not exceed the poverty threshold established by the United States Census Bureau or, when income does exceed the poverty threshold, it may be shown on a facts found basis, which includes, but is not limited to, employment in a protected environment.  Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016).  Although VA has not defined what constitutes work “in a protected environment,” the Board nevertheless must consider its applicability on a facts found basis.

“Substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income.  See Faust v. West, 13 Vet. App. 342 (2000).  The central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.  See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993).  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).

In evaluating a veteran’s employability, consideration may be given to the level of education, special training and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

As of the date of this decision, the Veteran is service connected for an adjustment disorder (now rated as 70 percent prior to June 7, 2016, and 100 percent thereafter); obstructive sleep apnea (rated as noncompensably disabling prior to January 28, 2014 and in excess of 50 percent); headache syndrome (evaluated as noncompensable prior to November 9, 2016, and 50 percent thereafter); a right elbow disorder (evaluated as 10 percent prior to October 12, 2019 and 50 percent thereafter); left hip flexion (evaluated as noncompensable prior to October 13, 2019 and 40 percent thereafter); right hip flexion (evaluated as noncompensable prior to October 13, 2019 and 40 percent thereafter); a lumbar strain (evaluated as 10 percent prior to October 20, 2019 and 40 percent thereafter); a right elbow disorder (evaluated as 30 percent from October 12, 2019); a right knee disorder (evaluated as 10 percent prior to October 13, 2019 and 30 percent thereafter); a left knee disorder (evaluated as 10 percent prior to October 13, 2019 and 30 percent thereafter); a left ankle disorder (evaluated as noncompensable prior to October 12, 2019 and 20 percent thereafter); a right ankle disorder (evaluated as noncompensable prior to October 12, 2019 and 20 percent thereafter); right knee instability (evaluated as 20 percent from October 13, 2019); left knee instability (evaluated as 20 percent from October 13, 2019); left hip bursitis (evaluated as noncompensable prior to October 13, 2019 and 20 percent thereafter); right hip bursitis (evaluated as 20 percent from October 13, 2019); left lower extremity radiculopathy of the sciatic nerve (evaluated as 20 percent from October 20, 2019); right lower extremity radiculopathy of the sciatic nerve (evaluated as 20 percent from October 20, 2019); right lower radiculopathy of the femoral nerve (evaluated as 20 percent from October 20, 2019); left lower radiculopathy of the femoral nerve (evaluated as 20 percent from October 20, 2019); left ulnar neuropathy (evaluated as 10 percent prior to October 20, 2019 and 20 percent thereafter); tinnitus (evaluated as 10 percent from October 28, 2014); right elbow epicondylitis with limitation of extension (evaluated as 10 percent from October 12, 2019); a right wrist sprain (evaluated as noncompensable prior to October 12, 2019 and 10 percent thereafter); right hip extension (evaluated as 10 percent from October 13, 2019); left hip extension (evaluated as 10 percent from October 13, 2019); and scars (evaluated as noncompensable from January 28, 2014). 

The Veteran’s combined rating is 100 percent beginning January 28, 2014. 

Thus, the Board notes that as of the date of this decision, the Veteran has been awarded a combined rating of 100 percent for the entire period on appeal.  The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis.  Herlehy v. Principi, 15 Vet. App. 33, 35 (2001).

However, a grant of 100 percent rating does not always render the issue of TDIU moot.  Specifically, special monthly compensation (SMC) may be warranted if the Veteran has a 100 percent rating for a single disability, and VA finds that TDIU is warranted based solely on the disability other than the disability that is rated on 100 percent.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

In this case, the Veteran has been awarded a combined rating of 100 percent since January 28, 2014.  The evidence does not show, and the Veteran has not alleged, that one of his service-connected disabilities alone renders him unemployable.  Specifically, the Board acknowledges the arguments of the Veteran’s attorney for Social Security Administration (SSA) purposes only, that the Veteran is unemployable as a result of the combination of physical and psychiatric limitations.  See September 2014 Letter.  In that regard, the Veteran’s attorney noted the Veteran’s depression, chronic orthopedic problems, and chronic pain combined produced unemployability. 

Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the rating schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by such statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For the appeal period prior to June 7, 2016, the Veteran does not have a single service-connected disability rated as 100 percent disabling. For the appeal period beginning on June 7, 2016, the Veteran is in receipt of a rating under 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Therefore, the findings in Bradley are not applicable in this case, and the issue of entitlement to TDIU is moot, as the Veteran has been in receipt of a combined schedular rating of 100 percent during the entire course of the appeal. 

REASONS FOR REMAND

Increased Rating – Lumbar Strain, Left Knee, and Right Knee disorders

The Veteran was most recently afforded VA examinations for lumbar spine, left knee, and right knee disorders in October 2019.  Subsequently, in December 2019 VA treatment records, it was indicated that the Veteran’s lumbar spine and bilateral knee symptoms had worsened since his VA examinations.  Specifically, the Veteran complained of worsening back and knee pain.  See generally December 2019 VA treatment record. As the above evidence indicates a possible worsening of that the Veteran’s lumbar spine, left knee, and right knee disorders since his last VA examination, an additional examination should be afforded to determine the current level of severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

The matters are REMANDED for the following action:

1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records.  

For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. 

For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2. Following the receipt of outstanding records, schedule the Veteran for VA examinations to determine the current nature and severity of his service-connected lumbar spine, left knee, and right knee disorders.  The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted.

The VA examiner should discuss the current nature and severity of all manifestations of the Veteran's lumbar spine, left knee and right knee disorders. The examiner should record the range of motion observed on clinical evaluation in terms of degrees. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. If there is clinical evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

All opinions expressed should be accompanied by supporting rationale. 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mariah N. Sim, 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.