Citation Nr: 21013703 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-15 111 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an initial rating in excess of 20 percent for cervical spine degenerative disc disease is dismissed. Entitlement to an initial rating in excess of 10 percent for residuals of rectal carcinoid tumor removal is dismissed. Entitlement to an initial compensable rating for essential tumors is dismissed. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus prior to February 28, 2019, is denied. Entitlement to a rating in excess of 30 percent for bilateral pes planus beginning February 28, 2019, is denied. Entitlement to an initial rating in excess of 10 percent for a lumbar spine strain is denied. Entitlement to an initial rating in excess of 10 percent for peripheral vestibular disorder (vertigo) prior to September 11, 2019, is denied. Entitlement to a rating in excess of 30 percent for vertigo beginning September 11, 2019, is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for left shoulder degenerative joint disease is remanded. FINDINGS OF FACT 1. By letter dated September 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims of entitlement to an initial rating in excess of 50 percent for PTSD; entitlement to an initial rating in excess of 20 percent for cervical spine degenerative disc disease; entitlement to an initial rating in excess of 10 percent for residuals of rectal carcinoid tumor removal; and entitlement to an initial compensable rating for essential tumors. 2. For the appeal period prior to February 28, 2019, the impairment associated with the Veteran’s bilateral pes planus has not been productive of objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 3. For the appeal period beginning February 28, 2019, the impairment associated with the Veteran’s bilateral pes planus has not been productive of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances 4. For the period on appeal, the Veteran’s lumbar spine strain was not manifested by forward flexion of 60 degrees or less, 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; without ankylosis, incapacitating episodes due to intervertebral disc syndrome or associated objective neurological abnormalities such as bowel or bladder impairments. 5. Prior to September 11, 2019, occasional staggering related to vertigo was not been shown. 6. Beginning September 11, 2019, the Veteran’s peripheral vestibular disorder manifests with dizziness and occasional staggering, without Meniere’s disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 50 percent for PTSD have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 20 percent for cervical spine degenerative disc disease have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 10 percent for residuals of rectal carcinoid tumor removal have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the issue of entitlement to an initial compensable rating for essential tumors have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for an initial rating in excess of 10 percent for the Veteran’s bilateral pes planus prior to February 28, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Code 5276. 6. The criteria for a rating in excess of 30 percent for the Veteran’s bilateral pes planus beginning February 28, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.71a, Diagnostic Code 5276. 7. The criteria for an initial rating in excess rating in excess of 10 percent for a lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5237. 8. The criteria for an initial rating in excess of 10 percent for peripheral vestibular disorder prior to September 11, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.87, Diagnostic Code 6204. 9. The criteria for a rating in excess of 30 percent for peripheral vestibular disorder beginning September 11, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1987 to May 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in June 2018, at which times the issues currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. In a July 2020 rating decision, the Veteran was assigned increased ratings for his bilateral pes planus from noncompensable to 10 percent, effective June 1, 2011, and from 10 percent to 30 percent, effective February 28, 2019; vertigo from 10 percent to 30 percent, effective September 11, 2019; and left shoulder disability from 10 percent to 20 percent, effective June 1, 2011. Those were not complete grants of the benefits sought on appeal. However, the Board has limited its consideration accordingly. In the July 2020 rating decision, the Veteran was also granted entitlement to a TDIU, effective June 1, 2011. This grant represents a full grant of the matter previously on appeal. Accordingly, that matter is no longer before the Board. In October 2020, the Veteran’s private attorney withdrew representation after providing notice to the Veteran. In January 2021, the Veteran was notified of this withdrawal and advised that she could appoint another representative. To date, the record is silent as to a response from the Veteran indicating that a new representative has been appointed to assist with the present claim. Therefore, the Board will proceed with the Veteran’s claim as a pro se (unrepresented) claim. Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. By letter dated September 2020, the Veteran submitted a statement stating that he wished to withdraw his claims of entitlement to an initial rating in excess of 50 percent for PTSD; entitlement to an initial rating in excess of 20 percent for cervical spine degenerative disc disease; entitlement to an initial rating in excess of 10 percent for residuals of rectal carcinoid tumor removal; and entitlement to an initial compensable rating for essential tumors. The statement indicated that the Veteran requested that the Agency of Original Jurisdiction (AOJ) discontinue further development actions associated with the appeal. This statement was signed and submitted by the Veteran’s attorney and the Veteran was included as a carbon copy. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3). The Veteran has withdrawn the appeal on the issues of entitlement to increased ratings for PTSD, cervical spine degenerative disc disease, residuals of rectal carcinoid tumor removal, and essential tumors. The Board finds that the Veteran’s withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to those issues, and they are dismissed. Increased Rating Claims Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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.”).] 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 5276 or 5237. In other words, Diagnostic Codes 5276 and 5237 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). 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). Bilateral Pes Planus The Veteran generally asserts that he should have higher ratings for his bilateral foot pes planus as it is worse than contemplated by the currently assigned ratings. At the outset, the Board acknowledges that the Veteran is in receipt of separate disability ratings for, in pertinent part, right and left foot hallux valgus, and right and left foot arthritis. These disabilities, and their assigned ratings, are not currently before the Board on appeal. Therefore, those ratings will not be discussed in this decision. During the period on appeal, the Veteran’s bilateral pes planus is rated 10 percent prior to February 28, 2019, and 30 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Codes 5276. Disabilities of the feet are contemplated by Diagnostic Codes 5276 through 5284, which in some instances, provide for disability ratings for unilateral or bilateral disabilities. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned for weight-bearing line over or medial to great toe, inward bowing of the tendo-Achilles, pain on manipulation and use of the feet. A 30 percent rating is assigned for bilateral severe; objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is assigned for bilateral pronounced acquired disabilities of the feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. This is the maximum schedular rating for under this diagnostic code. Under Diagnostic Code 5284, for other foot injuries, a 10 percent rating is assigned for moderate injury, a 20 percent rating is assigned for moderately severe injury, and a 30 percent rating is assigned for severe injury. With actual loss of use of the foot, a 40 percent rating is assigned. At an April 2011 VA examination, the Veteran reported that he experienced bilateral foot pain that was a 6 on a 1 to 10 scale, with 10 being the most severe. The Veteran indicated that he experienced flare-ups of foot pain following physical activity that is relieved by rest. The Veteran reported that he did not use medication to treat foot pain and that he did not experience swelling, stiffness or fatigue. The Veteran reported that he did not experience functional impairment related to his bilateral pes planus. On examination, there was no evidence of tenderness, painful motion, weakness, edema or redness. There was also no evidence of swelling, extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing, alteration of the weight-bearing line, inward bowing of the Achilles tendon, marked inward displacement and severe spasm of the Achilles tendon on manipulation, or of the weight-bearing line falling over or medial to the great toe. The examiner reported that the Veteran’s pes planus was productive of mild impairment. At a February 2019 VA examination, the Veteran reported that he experienced occasional bilateral foot pain and numbness and indicated that he did not use orthotics or inserts. The Veteran indicated that he experienced flare-ups of foot pain following prolonged standing and walking. On examination, there was evidence of pain on use, pain accentuated on use, pain on manipulation, and decreased longitudinal arch height. There was no evidence of swelling, characteristic calluses, extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing, alteration of the weight-bearing line, inward bowing of the Achilles tendon, marked inward displacement and severe spasm of the Achilles tendon on manipulation, or of the weight-bearing line falling over or medial to the great toe. With regard to functional loss, the examiner noted that the Veteran experienced pain on weight-bearing, disturbance of locomotion, and interreference with standing. The Veteran reported regular use of a cane for assistance with ambulation. With regard to functional impairment, the examiner reported that the Veteran was unable to stand or walk for prolonged periods of time. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that his bilateral pes planus symptoms are manifestly different than those reported at above-mentioned VA examinations. Based on the foregoing evidence, the Board finds that an initial rating in excess of 10 percent prior to February 28, 2019, is not warranted. In this regard, the next-higher 30 percent rating requires objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Here, the record does not reflect that the Veteran’s bilateral pes planus has been productive of such symptomatology. Rather, at April 2011 examination report shows no evidence that the Veteran experience these symptoms and the Veteran denied functional impairment related to his bilateral pes planus. The Board acknowledges that the symptoms reported at the September 2019 VA examination meet the criteria for a higher rating. However, the date of the VA examination is the earliest date from which it is factually ascertainable that the Veteran experienced bilateral pes planus productive of pain on use, pain accentuated on use, pain on manipulation, and decreased longitudinal arch height. Prior to the date of that examination, the record does not contain evidence that the Veteran’s bilateral pes planus was productive of such symptomatology. Therefore, a higher rating is not warranted prior to February 28, 2019. See 38 C.F.R. § 4.71, Diagnostic Code 5237. Next, the Board finds that a rating in excess of 30 percent beginning February 28, 2019, is not warranted. In this regard, a next-higher rating of 50 percent requires bilateral pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances. Here, the record does not reflect that the Veteran’s bilateral pes planus has been productive of such symptomatology. To that end, the April 2011 and February 2019 VA examiners found no evidence of marked deformity, marked pronation, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon. Therefore, a higher rating for bilateral pes planus under this Diagnostic Code 5276 is not available. The Board also notes that there is no evidence that the Veteran experienced pes cavus. As such, a 50 percent rating pursuant to Diagnostic Code 5278 is not warranted. The Board has considered whether Diagnostic Code 5284 (for “other” foot injuries) is applicable to this case. However, the Board finds that the Veteran’s pes planus is adequately contemplated by his assigned rating under Diagnostic Code 5276, as it pertains directly to flatfoot. As such, Diagnostic Code 5276 is the proper diagnostic code to apply to his service-connected pes planus. The Board acknowledges the Veteran’s statement that his bilateral pes planus is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for ratings in excess of 10 percent and 30 percent, respectively, have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for bilateral pes planus. 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 Board has considered whether further staged ratings under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings are 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, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In this case, the preponderance of the evidence is against a rating in excess of 10 percent prior to February 28, 2019, and a rating in excess of 30 percent beginning February 28, 2019, for his bilateral pes planus and the claims must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lumbar Spine Strain The Veteran generally asserts that he should have a higher rating for his lumbar spine strain as it is worse than contemplated by the currently assigned rating. In this case, the Veteran’s lumbar spine strain is rated 10 percent under the provisions of 38 C.F.R. § 4.71, Diagnostic Code 5237. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the General Rating Formula provides for a 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or when muscle spasm, guarding or localized tenderness is not severe enough to result in an abnormal gait or abnormal spinal contour. A 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). There is no evidence that the Veteran experiences incapacitating episodes. In this regard, the VA examiners reported that the Veteran did not experience IVDS of the thoracolumbar spine and the Veteran does not contend otherwise. The Veteran was afforded a VA examination in April 2011. At that time, the Veteran reported that he experienced back pain, stiffness, fatigue, spasms, decreased motion, numbness and paresthesias. He indicated that he experienced back pain following prolonged walking but indicated that he could walk approximately 12 miles. He indicated that he did not experience any bowel or bladder problems. The Veteran reported that back pain typically occurred several times per day and generally lasted 1 to 3 hours in duration. The Veteran indicated that pain is exacerbated with physical activity and relieved by pain medication. The Veteran reported that he had not experienced any incapacitating episodes related to his lumbar spine disability. On range of motion testing, the Veteran demonstrated forward flexion to 105 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 25 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Pain was noted with extension and left lateral flexion. The examiner indicated that range of motion did not contribute to functional loss, and there was no evidence of additional loss of function or range of motion following repetitive-use or during flare-ups. At a February 2019 VA examination, the Veteran reported that he experienced flare-ups of lumbar spine pain following physical activity that typically lasted a day in duration. The Veteran indicated that he had difficulty bending, lifting, pushing and pulling, as well as using stairs. On range of motion testing, the Veteran demonstrated forward flexion to 65 degrees; extension to 10 degrees; right lateral flexion to 25 degrees; left lateral flexion to 15 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 20 degrees, with pain noted on each. There was evidence of pain with weight-bearing, and no evidence of tenderness on palpation. The examiner indicated that range of motion did not contribute to functional loss, and there was no evidence of additional loss of function or range of motion following repetitive-use or during flare-ups. There was no evidence of muscle spasm or guarding. Muscle strength testing was normal, and there was no evidence of atrophy or ankylosis. Reflex examination was normal, and sensory examination showed absent sensation in the right and left foot/toes but was otherwise normal. There was no evidence of radiculopathy or other neurological abnormalities, nor was there evidence that the Veteran experienced IVDS. The Veteran reported regular use of a cane for assistance with ambulation. With regard to functional impairment, the examiner noted that the Veteran had difficulty with sitting and standing for prolonged periods of time. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that her lumbar spine symptoms are manifestly different than those reported above. Upon review, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s lumbar spine strain at any point during the period on appeal. In that regard, a review of the record does not contain objective evidence that the Veteran experienced forward flexion worse than 65 degrees. Moreover, the combined range of motion has been shown to be, at worst, 160 degrees. Further, there were no signs that the Veteran’s lumbar spine strain was productive of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and no incapacitating episodes were noted. The currently assigned 10 percent rating accurately reflects the Veteran’s pain on movement of his lumbar spine, to include during flare-ups and after repetitive use over time. To that end, the April 2011 and February 2019 examiners indicated that range of motion did not contribute to functional loss, and there was no evidence of additional loss of function or range of motion following repetitive-use or during flare-ups. As noted above, during the appeal period range of motion testing was performed and showed, at worst, forward flexion to 65 degrees and a combined range of motion no less than 160 degrees. During the April 2011 and February 2019 examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, throughout the period on appeal, the Veteran reported flare-ups but described the flare-ups as consisting of increased pain. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher rating is not warranted based on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, supra. The Board has considered a higher rating based on incapacitating episodes. However, there is no indication from the record that the Veteran has experienced incapacitating episodes requiring medically prescribed bed rest. As such, the Veteran is appropriately rated based on pain, limitation of motion, and limitation of function. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additionally, ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran, and there is no evidence that the Veteran’s muscle spasms resulted in abnormal gait or spinal contour. With regard to disabilities of the spine, VA is to evaluate any associated objective neurologic abnormalities under appropriate diagnostic criteria. See Note (1) of the General Rating Formula. In this regard, the Board acknowledges that the Veteran has reported left upper and lower extremity pain and numbness. However, these symptoms are associated with his right and left lower extremity peripheral neuropathy and are not on appeal. The Board notes that the Veteran is already in receipt of separate ratings for left and right lower extremity alcoholic peripheral neuropathy Further, the Board finds that his lumbar spine strain does not result in any additional associated objective neurologic abnormalities, to include bladder or bowel incontinence. Neurologic abnormalities or findings related to the thoracolumbar spine condition such as bowel or bladder problems were not found on objective examination in April 2011 and February 2019. Therefore, absent evidence of objective neurologic abnormalities of bladder or bowel incontinence associated with the lumbar spine disorder, the Board finds that separate ratings for such conditions are not warranted. In reaching its conclusions, the Board acknowledges the Veteran’s belief that his lumbar spine disability is more severe than as reflected by the currently assigned disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his lumbar spine disability Consideration has also been given to assigning further staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, supra. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. See Doucette v. Shulkin, supra. In this case, the preponderance of the evidence is against an initial rating in excess of 10 percent rating and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Peripheral Vestibular Disorder The Veteran generally asserts that he should have higher ratings for his peripheral vestibular disorder as it is worse than contemplated by the currently assigned ratings. In this case, the Veteran’s peripheral vestibular disorder is rated 10 percent prior to September 11, 2019 and 30 percent thereafter under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6204, which relates to peripheral vestibular disorders. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness and the maximum 30 percent rating is warranted when there is dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. A note provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned. Hearing impairment or suppuration shall be separately rated and combined. Id. The Board notes that the Veteran was granted service connection for tinnitus and was denied service connection for bilateral hearing loss in a September 2011 rating decision. However, as he failed to appeal these issues in his April 2012 notice of disagreement, and the Board lacks jurisdiction regarding these disabilities. Under Diagnostic Code 6205, contemplating Meniere’s syndrome, a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus, and a 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus. A 100 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. A note provides that Meniere’s syndrome can be evaluated either under these criteria or by separately evaluating vertigo as a peripheral vestibular disorder, hearing impairment, and tinnitus, whichever method results in a higher overall evaluation; however a combined evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 is inappropriate. At an April 2011 VA examination, the Veteran reported that he experienced intermittent ear pain that typically lasted less than one minute in duration. The Veteran also indicated that he experienced intermittent dizziness and difficulty with balance approximately three times per week that typically lasted less than five minutes in duration. The Veteran denied ear discharge, ear pruritus, chronic ear infections and a staggering gait. The Veteran commented that he did not receive treatment for his vertigo and that he did not experience any functional impairment. On examination, ears were normal and there was no evidence of loss of balance, staggering gait or cerebellar gait. At a September 2019 VA examination, the Veteran reported that he experienced intermittent dizziness that occurred approximately six to eight times per day and typically lasted 30 seconds to 5 minutes in duration. The examiner reported that the Veteran’s vertigo did not require continuous medication. On examination, the examiner reported that the Veteran experienced vertigo more than once weekly that typically lasted less than one hour, as well as staggering more than once weekly that typically lasted less than one hour. The examiner reported that the Veteran experienced unstable gait and used a walker for assistance with ambulation. The Veteran was positive for unsteadiness per the Romberg test. No other pertinent findings were noted. Based on the foregoing evidence, the Board finds that an initial rating in excess of 10 percent prior to September 11, 2019, is not warranted. In this regard, the next-higher 30 percent rating requires dizziness and occasional staggering. Here, the record does not reflect that the Veteran’s vertigo has been productive of such symptomatology. Rather, at April 2011 examination report shows no evidence that the Veteran experienced staggering and the Veteran denied functional impairment related to his vertigo. The Board acknowledges that the symptoms reported at the September 2019 VA examination meet the criteria for a higher rating. However, the date of the VA examination is the earliest date from which it is factually ascertainable that the Veteran experienced vertigo productive of occasional staggering. Prior to the date of that examination, the record does not include any reports or notations of staggering. Therefore, a higher rating is not warranted prior to September 11, 2019. See 38 C.F.R. § 4.87, Diagnostic Code 6204. Next, for the period beginning September 11, 2019, the Board notes that that the Veteran’s current disability rating of 30 percent for his vertigo pursuant to Diagnostic Code 6204 is the highest schedular rating for the disability. However, if it is found that Meniere’s syndrome is found to be part of the service-connected disability, Diagnostic Code 6205 may be used to award a higher rating. Here, the Veteran’s post-service treatment records reflect no treatment for Meniere’s disease and the April 2011 and September 2019 VA examiners found that the Veteran did not have a diagnosis of Meniere’s disease. Therefore, the use of the diagnostic code for Meniere’s disease is not for application. The Board acknowledges the Veteran’s statement that his vertigo is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for ratings in excess of 10 percent and 30 percent, respectively, have been met. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for vertigo. 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 Board has considered whether further staged ratings under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings are 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. In this case, the preponderance of the evidence is against a rating in excess of 10 percent prior to September 11, 2019, and a rating in excess of 30 percent beginning September 11, 2019, for his peripheral vestibular disorder and the claims must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board finds that additional development is required before the claim remaining on appeal is decided. Left Shoulder In February 2019, the Veteran was afforded a VA examination to assess the severity of his left shoulder disability. At that time, range of motion testing was not performed due to pain from a recent left rib fracture. Without range of motion testing, the Board in unable to adequately assess the current severity and manifestations of the Veteran’s left shoulder disability. Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his left shoulder disability. The matter is 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 since February 2021. 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 his 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. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to address the current level of severity of all impairment resulting from his left shoulder disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). A rationale for all opinions should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.