Citation Nr: 21022273 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-06 710 DATE: April 15, 2021 ORDER Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to a 20 percent for lumbar spine disorder prior to December 4, 2018 is granted, but a rating in excess of 40 percent thereafter is denied. Entitlement to a 10 percent rating prior to August 1, 2019, but no higher, is granted for irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD); a rating in excess of 10 percent is denied. REMANDED Entitlement to a compensable rating for a left foot disability is remanded. Entitlement to a compensable rating for a right foot disability is remanded. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorders, to include PTSD, have not been productive of total occupational and social impairment. 2. Prior to December 4, 2018, the Veteran’s lumbar spine disability was manifested by muscle spasm severe enough to result in an abnormal spinal contour. 3. From December 4, 2018, the Veteran’s lumbar spine disability was not manifested by unfavorable ankylosis. 4. For the entire appeal period, the Veteran’s IBS with GERD has been manifested by moderate symptoms, with frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a 20 percent rating for lumbar spine disability prior to December 4, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 40 percent from December 4, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. The criteria for a 10 percent rating, but no higher, for IBS with GERD prior August 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.113, 4.114, Diagnostic Codes 7319, 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1994 to August 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied increased ratings for an adjustment disorder, IBS, GERD, and right and left foot disorders. The Veteran was however, assigned a 10 percent rating for her lumbar spine disorder, effective June 30, 2009. In an August 2018 Board decision, the Veteran was awarded service connection for PTSD, however the other issues on appeal were remanded for further development. In a March 2019 rating decision, the Veteran was assigned a 70 percent rating for her acquired psychiatric disorder, to include PTSD, effective August 18, 2007. She was also assigned a rating of 40 percent for her lumbar spine disorder, effective December 4, 2018. In an October 2020 rating decision, the Veteran was assigned a 10 percent rating for IBS and GERD, effective August 1, 2019. In August 2020, the Veteran elected to proceed pro se. In the October 2020 rating decision, the Veteran was also awarded service connection for bilateral hearing loss, claimed as a central audio processing disorder. As such, there is no remaining case or controversy with respect to the claim for service connection for bilateral hearing loss. Therefore, that issue is no longer on appeal. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board also recognizes that a claim of a total disability rating based upon individual unemployability (TDIU) may be deemed part and parcel of an appeal for an increased rating without the filing of a formal claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). An March 2019 AOJ rating decision awarded TDIU effective April 12, 2016. The Veteran and her attorney then of record separately appealed the effective date of award assigned arguing for an effective date of March 2011 or March 2012. See VA Form 20-0996 Decision Review Request: Higher-Level Review. A November 2019 AOJ decision awarded an effective date of March 16, 2011. As the effective date sought has been granted, the Board finds that this issue is no longer on appeal per Rice. AB v. Brown, 6 Vet. App. 35, 39 (1993). After completing the development outlined in the August 2018 Board decision and remand, the case has now been returned to the Board for adjudication. In March 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the record. In November 2018 correspondence, the Veteran requested the Board to expedite her case on the basis of financial hardship due to her unemployment. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). The record contains various past-due bills and an eviction notice as evidence of financial hardship; however, the Board finds that this evidence does not demonstrate the kind of severe financial hardship contemplated by the regulation. 38 C.F.R. § 20.900. Therefore, the motion to advance the case on the docket based on financial hardship is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Acquired Psychiatric Disorder The Veteran is currently service-connected for PTSD, bipolar disorder, panic disorder with agoraphobia, adjustment disorder, anxiety, and depression, and has been assigned a rating of 70 percent under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411-9440 for the entire appeal period. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under DC 9411, a 70 percent evaluation is warranted when the psychiatric disorder results in 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. A 100 percent evaluation is warranted when the psychiatric disorder results in 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders 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 as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” December 2007 VA treatment records document that the Veteran had been charged with attempted murder for stabbing her boyfriend two years earlier, which was later downgraded to domestic violence. She reported that he had stolen from her and had been using drugs. The Veteran also reported that she had made sacrifices to provide for herself and her daughter, and had made wise investments. She also indicated that she was taking online courses and was pursuing a degree in human resources. The clinician noted that the Veteran was alert and oriented to place, time, and purpose, and that her grooming and hygiene were good. She denied having any homicidal or suicidal ideation or intent. In a January 2008 VA examination, the examiner noted that the Veteran was alert and attentive, and oriented to person, place, and time. Her psychomotor activity was within normal limits and there was no evidence of psychosis or perceptual disorder. Her thought processes were goal-directed, and her thought content was within normal limits. She denied having any suicidal or homicidal ideation. The examiner noted that the Veteran was neatly dressed and groomed, and that she maintained her activities of daily living without difficulty. The Veteran also reported that she was disappointed in her family because they were not supportive, but that she had one supportive friend who she relied upon. She reported taking online classes, and that she was bored and ready to return to some type of work. In a February 2008 VA treatment record, the Veteran admitted having a hard time with anger, however she denied being a danger to herself or anyone else. She indicated that she had strained relationships with her mother and sister, and that her only source of support was from a friend who resided in Memphis. She also reported that she found a job as a security guard at a hotel and would begin working soon. In a February 2009 letter, the Veteran was notified that she was terminated from her employment because of her communication skills, and her inability to get along with others. A December 2009 Emergency Department Report from Mobile Infirmary Medical Center documented treatment for a drug overdose and intoxication. The Veteran reported having situational problems, and that she “just wanted to sleep.” She indicated that she had not been depressed or upset; and had no anger, suicidal thoughts, hallucinations, or delusions. She was also not confused or paranoid. The examiner concluded in the clinical impression that this was an accidental overdose and that the clinical picture did not suggest suicidal ideation. In April 2011 correspondence, the Veteran indicated that she had periods of decreased work efficiency and inability to perform occupational tasks. She also reported that she was unable to sleep and had not been able to sustain employment due to her disability. A March 2011 VA treatment record documented that the Veteran was excited about obtaining an apartment though a housing program, and that she was actively pursuing employment opportunities and had an interview for a customer service job. A May 2011 record documented difficulties in her personal relationships with her boyfriends and that she was feeling depressed. She did report having bouts of suicidal ideation, but no real intent, and that she experienced occasional panic attacks. In a June 2011 Social Security Administration (SSA) function report, the Veteran indicated that she cared for her daughter on a daily basis, and that she also cared for her pets. She reported that her hobbies and interests included talking to friends and family, and that she visited her church and mother’s home on a regular basis, however, her social activities were limited due to the illnesses or injuries she was going through. She also indicated that she had lost 4 jobs for not being able to get along with others. A June 2011 State of Alabama Human Resources report documented that an assessment was completed for suspected child abuse/neglect of the Veteran’s daughter, and that there was not sufficient evidence that the Veteran physically abused her daughter. The report did note that her use of an extension cord to spank her daughter was inappropriate. In an October 2011 VA treatment record, the Veteran reported feeling sad all the time and not being able to function or go to school. She indicated that she wanted to die, but that she didn’t want to kill herself because she was a Christian. The clinician noted that there was no indication the Veteran was responding to any hallucinations, and that she was found to have no current suicidal ideations. She did not have a plan to harm herself or another person, and she had not previously attempted suicide. In a January 2012 VA treatment record, the Veteran reported that she was experiencing difficulties with parenting her daughter which caused her to feel depressed. She was alert and fully oriented, and denied being a current danger to herself or others. In an April 2012 counseling report from Little Creek Counseling Center, the Veteran’s private psychologist, N.M. (initials used to protect privacy), indicated that the Veteran and her daughter had been attending weekly therapy sessions. N.M. indicated that there was no suspicion or evidence of any physical, mental, or emotional abuse. She found that overall, the Veteran’s daughter appeared to be well taken care of by the Veteran, and that she was working hard to increase her parenting skills. N.M. also noted that the Veteran had been successful in implementing strategies derived from her structural family therapy sessions. During a May 2012 VA examination, the examiner found that the Veteran did not exhibit her diagnosed adjustment disorder. The Veteran reported sleep disturbances, however, she appeared fully alert and oriented. Her speech was normal, and she denied having any hallucinations or delusions. Suicidal and homicidal ideation and intent were denied, and there was no observable impairment in concentration, attention, or memory. The Veteran reported being separated from her husband, and that although she had past difficulties with her daughter, she could not say her relationship with her was bad. The Veteran also reported that she had a best friend who she spoke to once a week. She reported that she had been out of work for over a year, and that she had last worked full time as an accounts payable clerk, but she stopped working because they wanted her to relocate to Mississippi. She indicated that she did not work now because of her health. The examiner noted the Veteran’s current symptoms of adjustment disorder, excluding her reported physical health problems, did not appear to eliminate her current capacity for physical or sedentary employment. During an August 2012 VA examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that overall, the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or that symptoms are controlled by medication. In an October 2012 statement, the Veteran indicated that she was unable to maintain her employment due to her depression and that she needed assistance with major decisions and remembering to take her medications. She indicated that her husband had to takeover and run the household when she was going through a depressive mood, and that she had experienced weight loss in recent months. In an October 2012 statement, the Veteran’s spouse indicated that he had separated from her in the past because of her irrational ways and her temper. He indicated that she had previously been reported to social services for abuse of their daughter, but that the case had been dropped. He also reported that she could not keep a job and that she had previously talked about suicide, though now she was taking her medications and attending therapy. In a September 2014 letter, the Veteran’s physician noted that she was unable to complete jury duty on account of her diagnosed acquired psychiatric disorders, because they impaired her attention, focus, and cognition. In an October 2014 mental residual capacity questionnaire, the Veteran was noted to have a marked degree of difficulty in maintaining social functioning and an extreme degree of difficulty in completing work related activities in a normal workday or workweek. During an October 2014 VA examination, the examiner noted symptoms of impaired impulse control, such as unprovoked irritability with periods of violence, anxiety, depressed mood, suspiciousness, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Her speech was normal, and she exhibited good grooming and hygiene. There were no signs of psychosis or unusual behavior. The Veteran indicated that she did not know how the situation with her husband was going to go and that she had not worked since 2010. She indicated that she was taking online classes, however, she was on academic probation for attendance issues. The Veteran indicated that she had “no real excuse, just didn’t feel like logging on and doing it.” The examiner concluded that the Veteran’s overall level of occupational and social impairment was occupational and social impairment with reduced reliability and productivity. In a December 2016 VA treatment record, the Veteran reported that her mood had improved and that she was engaging in more social activity than normal. During a March 2017 VA examination, the Veteran reported that she and her husband were still married but that they sometimes separated and then got back together again. She reported sometimes seeing family and friends, although her social life had reduced since 2014 and 2015. She indicated that she did not like interacting with people and is confrontational. The Veteran also indicated that she had worked for one week in 2015, but that she got fired because she wasn’t a good fit. The Veteran appeared neatly dressed with good grooming and hygiene and her speech was normal. There were no signs of psychosis or unusual behavior. The examiner indicated that the Veteran’s mental health symptoms would not preclude her from engaging in work activities. Instead, the examiner stated the primary issue is her difficulty interacting appropriately with others and taking responsibility for her actions. Overall, the examiner found that the Veteran’s level of occupational and social impairment was occupational and social impairment with reduced reliability and productivity. In a May 2018 private examination, J.L., a private psychologist, indicated that the Veteran experienced near continuous anxiety and depression which prevented her from functioning independently, appropriately, and effectively. The examiner found that the Veteran exhibited impaired impulse control and occasional neglect of her personal hygiene and appearance. Overall, the examiner found that the Veteran exhibited total occupational and social impairment, and was more likely than not unemployable due to her PTSD. In a September 2018 VA treatment record, the Veteran indicated that she had interacted with her mother and daughter during her daughter’s baby shower, and that she hadn’t gotten in a fight with anyone for a long time. There was no evidence of any delusions or hallucinations, and she appeared clean and appropriately dressed. The Veteran did not report any suicidal or homicidal intent or ideation. In a July 2020 VA treatment record, the Veteran reported that she had recently broken up with her significant other, but that she was providing care for her two grandsons. She denied suicidal or homicidal ideations, and appeared appropriately groomed. Thought processes were logical and she was talkative. Based on the foregoing, the Board finds that the Veteran’s overall disability picture is not consistent with a 100 percent rating. The evidence of record does not show that the Veteran has 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. With regard to social impairment, although the Veteran has experienced difficulties in her relationships, she has always had a relationship with her daughter. More recently, in the July 2020 VA treatment record, the Veteran was given the responsibility to care for her grandchildren which negates any finding of total social impairment. With regard to occupational impairment, although the Veteran has had difficulties maintaining employment due to her inability to interact with others, the Veteran was able to secure employment at various times and was able to complete some coursework. Notably, the March 2017 VA examiner indicated that the Veteran would not be precluded from engaging in work activities based upon her mental health symptoms. In addition, throughout the appeal period, the Veteran was always oriented to time and place, denied having any delusions or hallucinations, and consistently denied having suicidal or homicidal ideations. While a December 2007 VA treatment record did note that the Veteran had stabbed her boyfriend, the Veteran indicated that this was due to a dispute that involved an assault by her boyfriend. Moreover, there are no other indications that the Veteran has ever had any other homicidal ideations or intent throughout the appeal period. There is no indication that there was a persistent danger of the Veteran hurting others during the appeal period. With regard to suicidal ideation, the Veteran’s December 2009 medication overdose was found to be accidental and the Veteran denied having any intent to commit suicide. In the October 2011 VA treatment record, although the Veteran indicated that she wanted to die, she denied having any plan to kill herself and that she would not do so because of her faith. There is no other evidence of any suicidal ideation or intent. The Board also notes that, throughout the appeal period, the Veteran was documented as maintaining personal hygiene, and she was alert and oriented. She also did not exhibit grossly inappropriate behavior or gross impairment in thought process and communication. In the May 2018 private report from J.L., Veteran was found to have near continuous anxiety and depression which prevents her from functioning independently, appropriately, and effectively. The examiner also found that the Veteran exhibited total occupational and social impairment. The record in its entirety does not reflect this. Notably, in a September 2018 VA treatment record from the same year, the Veteran indicated that she had interacted with her mother and daughter during her daughter’s baby shower, and that she hadn’t gotten in a fight with anyone for a long time. There was no evidence of any delusions or hallucinations, and she appeared clean and appropriately dressed. In the March 2017 VA examination prior to this private report, the Veteran appeared neatly dressed with good grooming and hygiene and there were no signs of psychosis or unusual behavior. Rather, throughout the appeal period, the Veteran always appeared appropriately groomed and was able to perform activities of daily living. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or other symptoms of similar severity may be shown or argued, the Board finds that the Veteran’s psychiatric disorders were not productive of both total occupational and social impairment. The Board emphasizes that the criteria for an evaluation of 100 percent requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive or requirement must be met in order for an increased rating to be assigned). Even assuming that the Veteran had total occupational impairment, which has not been shown, the weight of the evidence does not show that he had total social impairment. Indeed, although the Veteran had significant social impairment, her symptoms did not prevent her from maintaining relationships with her family. Thus, it cannot be said that the Veteran had total social impairment. After considering the evidence of record, the Board finds that the Veteran's symptoms and resulting impairment more closely approximate the criteria for a 70 percent disability rating for the entire period on appeal. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran’s symptoms caused total occupational and social functioning referenced by the 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated for the entire appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Therefore, the Board finds that the Veteran’s acquired psychiatric disorder, to include PTSD, does not warrant a rating in excess of 70 percent. Lumbar Spine The Veteran is currently assigned a rating of 10 percent prior to December 4, 2018, for lumbar back strain, and a 40 percent rating thereafter, under Diagnostic Code 5237 for lumbosacral strain. The Board notes that, effective February 7, 2021, the applicable rating criteria for musculoskeletal disabilities were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). The revisions pertaining to the lumbar spine consist of changes to Diagnostic Code 5242 for degenerative arthritis and Diagnostic Code 5243 for Intervertebral Disc Syndrome (IVDS). The record reflects medical opinion that the Veteran’s degenerative disc disease is not related to her service-connected lumbar strain, and the Veteran has not expressed disagreement with this assessment. As the Veteran is not rated under the IVDS codes, and does not have diagnoses for these disabilities, the revisions to the rating criteria do not affect the adjudication of her claim. A disability of the musculoskeletal system is measured by the effect on the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71(a), Note (1). The range of thoracolumbar spine motion is pictorially represented in Plate V at 38 C.F.R. § 4.71a. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). As will be further explained below, in making the determination to deny higher ratings for the Veteran’s back condition, the Board included consideration of the Veteran’s complaints of pain, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. Prior to December 4, 2018 In a January 2011 private treatment record from Discover Chiropractic Centers, the Veteran was noted to have severe right scoliosis. With regard to range of motion measurements, the Veteran exhibited forward flexion to 70 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right rotation to 30 degrees, and left rotation to 30 degrees. During a June 2011 VA examination, the range of motion measurements for active motion after 3 repetitions showed forward flexion to 75 degrees, with the Veteran experiencing pain at 75 degrees. Extension was to 30 degrees, right and left lateral flexion was to 35 degrees, and right and left lateral rotation was to 30 degrees. The examiner noted that there was no reported prescribed bed rest during the last 12 months. The Veteran indicated that she could not lift over 10 pounds without her back hurting. She indicated that when she had a flare-up, she could not move, and that when she experienced everyday pain, she could not walk as fast. The Veteran asserted that she experienced flare-ups twice a month, lasting 2 days, where the intensity of her symptoms was at a level of 7 out of a scale of 10. There was no abnormality noted pertaining to the Veteran’s gait. Diagnostic testing showed mild levoscoliosis with degenerative disease at L5-S1, however, the examiner noted that the degenerative disease was new and less likely than not related to or worsened beyond natural progression by the Veteran’s service-connected lumbago. In an August 2011 private report from the University of South Alabama Hospitals, the examiner noted that the lumbar spine did not show any acute radiographic findings. Vertebral body heights, alignment, and intervertebral disc spaces were well-maintained. In a September 2011 VA treatment record, the examiner noted that the Veteran’s forward flexion was limited by 25 percent with increased right lumbar pain, and that extension was limited by 50 percent with increased right lumbar pain. Right and left rotation was limited by 50 percent. In a March 2012 statement, the Veteran reported that her lumbago pain had increased in severity and that she had low back pain daily. She indicated that some days she was confined to her bed or had limited mobility, and that she received injections in her back to alleviate the pain. In a May 2012 VA examination, the Veteran exhibited forward flexion to 90 degrees or greater, extension to 30 degrees or greater, right lateral flexion to 30 degrees or greater, left lateral flexion to 30 degrees or greater, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. There was no objective evidence of painful motion for any of the measurements. Range of motion was the same after repetitive use testing with 3 repetitions. There was no additional limitation in range of motion following repetitive use testing, and the Veteran did not have any functional loss or functional impairment. She did exhibit mild right lumbar paravertebral muscle tenderness, however, there was no guarding or muscle spasm of the back. The examiner did note that the Veteran had IVDS of the thoracolumbar spine, and that she had an incapacitating episode lasting less than 1 week in the past 12 months. During the May 2012 VA examination, the Veteran reported that she had intermittent pain that occurred every other day and stiffness. She reported difficulty bending, lifting, and carrying anything over 20 pounds. She also reported having a severe flare-up in September 2011 which she went to the emergency room for. In an October 2012 statement, the Veteran reported that she had been previously diagnosed with scoliosis. She indicated that her back pain was debilitating and limited her motion. She also reported having frequent and painful muscle spasms. In an undated and unsigned back disability benefits questionnaire that was included in the Veteran’s SSA records received in August 2014, it was noted that the Veteran had guarding and muscle spasm of the spine that resulted in abnormal spinal contour and guarding and muscle spasm that did not result in abnormal gait or spinal contour. It was also noted that the Veteran did not have a lumbar spine diagnosis, however, the diagnosis of lumbago was noted. The Veteran was noted to have incapacitating episodes in the last 12 months due to IVDS that lasted at least 2 weeks but were less than 6 weeks. In a February 2015 VA treatment record, the Veteran reported that her back will often “get stuck,” and that she has pain with bending, prolonged sitting, walking, and in the morning when she wakes up. The examiner noted full flexion and extension during range of motion testing, with pain observed at the end range of extension. In a May 2016 private treatment record, J.M., the Veteran’s private physician, noted that the there was no obvious limitation of motion of the lumbar spine and no muscle spasm or tenderness. However, in a June 2016 statement, the Veteran asserted that this record had discrepancies and that she was not offered a comprehensive back examination. She indicated that the doctor did not perform a physical examination, and only assessed her disability by the manner in which she was sitting. In a November 2016 private treatment record from Gulf Coast Spine, the Veteran reported that her back pain was really bad and felt locked up in the morning. Range of motion was decreased with flexion and extension, worsening leg pain. In a December 2016 private treatment record, range of motion decreased mildly with lateral rotation, flexion, and extension. In a December 2017 VA treatment record, the Veteran’s lumbar range of motion was within normal limits, with pain during flexion. The examiner observed that the Veteran ambulates with a mild antalgic pattern and that there was increased lumbar lordosis while standing. During the March 2018 Board hearing, the Veteran reported that her back pain had worsened over the past few years and that it locks up. She reported being in physical therapy, and that her pain was at a level of 5 to 7. She also reported that bending and stooping was an issue for her. Applying the governing law and regulations to the facts of the Veteran’s case, the Board observes that prior to December 4, 2018, the Veteran met the criteria for a 20 percent rating based upon muscle spasm resulting in abnormal spinal contour. Since the inception of the appeal, the Veteran has been noted to have an abnormal spinal contour of varying severity – medically described as mild to severe in degree. She credibly described recurrent flares of muscle pain and muscle spasm. Medical records associated with her SSA claim include medical opinion that the Veteran manifested muscle spasm resulting in abnormal spinal contour. With consideration of 38 C.F.R. §§ 4.40 and 4.45 as well as the approximating principles of 38 C.F.R. § 4.7, the Board finds that the lay and medical evidence establishes that the Veteran’s lumbar strain has resulted in muscle spasm resulting in abnormal spinal contour. However, the Board finds that a rating in excess of 20 percent prior to December 4, 2018 is not warranted. In this respect, the Veteran’s lumbar spine range of motion measurements, both forward flexion and combined range of motion, fell within the criteria set forth for a 10 percent disability rating. On all examinations prior to December 4, 2018, the Veteran demonstrated forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees. The Veteran has also reported that her back “locks up,” however the record does not show any evidence of ankylosis as defined by VA regulation. The Board also notes that the Veteran was noted to have a diagnosis of IVDS in both the May 2012 and June 2011 VA examinations, however, the June 2011 VA examination specifically indicated that the degenerative disease was new and less likely than not related to or worsened beyond natural progression by the Veteran’s service-connected lumbago. Moreover, even if the Veteran had a diagnosis of IVDS that was caused by or related to her service-connected lumbar spine disorder, she would not be entitled to a higher rating as there is no indication in the record that she required bed rest prescribed by a physician and treatment by a physician. Notably, in her March 2012 lay statement, while she reported being confined to her bed, there was no indication that this was prescribed by a physician. Additionally, a March 2019 AOJ decision granted service connection for radiculopathy of the left and right lower extremities and assigned separate 10 percent ratings effective December 4, 2018. The initial ratings assigned, and effective dates of awards, are not on appeal. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased rating for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher, prior to December 4, 2018. In this regard, the Board observes that the Veteran complained of pain on numerous occasions and reported having flare-ups. However, the effect of the pain on the Veteran’s lumbar spine is contemplated in the currently assigned rating. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. During the May 2012 VA examination, the VA examiner indicated there was no additional limitation in range of motion following repetitive use testing, and the Veteran did not have any functional loss or functional impairment. Moreover, while the Veteran has reported experiencing pain during flare-ups, she has not described how her motion is limited. In this regard, in her October 2012 statement, the Veteran indicated that her pain limited her motion, but she did not provide any additional information as to how her motion was limited that would warrant a higher rating. The Veteran’s statements do not suggest the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-ups or after repetitive use over time, there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating is not warranted based on limitation of motion. Thus, the Board finds that the effect of pain on the Veteran’s back is contemplated in the currently assigned 20 percent rating prior to December 4, 2018, and that her symptoms do not more nearly approximate the criteria for a rating in excess of 20 percent prior to December 4, 2018. From December 4, 2018 During the December 2018 VA examination, the Veteran exhibited forward flexion to 25 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The abnormal range of motion did not contribute to functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner indicated that the examination was not being conducted during a flare-up, and that there was no way describe how pain, weakness, fatigability, or incoordination limited functional ability during a flare-up as there was no conceptual or empirical basis for making such a determination without directly observing function under the flare-up condition. For the same reasons, the examiner was unable to estimate range of motion during a flare-up. The examiner noted that the Veteran had guarding, but that it did not result in abnormal gait or abnormal spinal contour. There was also no ankylosis observed, and the examiner noted that the Veteran did not have IVDS. The Veteran reported that she experiences pain, stiffness, and locking in her lower back region. During an August 2019 VA examination, the Veteran exhibited forward flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Her abnormal range of motion contributed to functional loss in that she was unable to easily reach for objects at her feet. Pain was noted during the examination which caused functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner indicated that after reviewing the evidence of record, there remained no basis for offering estimates or information regarding additional losses of function or motion when it comes to repeated use over time. The Veteran also denied having any flare-ups. There was no indication of guarding or muscle spasms. There was no ankylosis observed, and the examiner noted that the Veteran did not have IVDS. The Veteran also reported that her pain caused stiffness and aching, and that the pain was constant. After reviewing the evidence of record, the Board also finds that since December 4, 2020, the Veteran’s lumbar spine disability warrants a rating no higher than 40 percent. As noted above, the criteria for a rating in excess of 40 percent requires a finding of unfavorable ankylosis of the entire thoracolumbar spine. The private and VA treatment records contain no evidence of actual ankylosis of the spine. Although the Veteran manifests functional impairment that, at worst, limits her forward flexion to 25 degrees, neither the medical nor lay evidence of record suggests the spine is in a fixed position. As the maximum rating for motion loss has been awarded, the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not applicable and any examination inadequacies in evaluating functional impairment on use or repetition is harmless error. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, the claim for a rating higher than 40 percent is denied. In addition, for the time period from December 4, 2018, the evidence does not show that the Veteran has IVDS. Thus, the Veteran would not be entitled to a rating under the Diagnostic Code for IVDS. With regard to neurological abnormalities, the Board notes that the Veteran was assigned 10 percent ratings for radiculopathy of the left and right lower extremities, associated with her lumbar spine disability. The Veteran has not appealed the initial ratings assigned for this neurological impairment; thus, the Board will not address these issues at this time. The Board has also considered whether it is factually ascertainable that the limitation of motion demonstrated at the December 2018 examination was present at an earlier time period. The Veteran has reported a progressive worsening during the course of the appeal period, but the Board finds that the lay and medical evidence does not provide sufficient information to determine a specific time period prior to December 2018 when the limitation of motion found on the December 2018 examination first manifested. Based on the foregoing, the Board finds that the weight of the evidence is against increased ratings for the lumbar spine disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). IBS and GERD The Veteran is currently assigned a noncompensable rating prior to August 1, 2019, and a 10 percent rating thereafter, for IBS and GERD with dysphagia and gastritis, claimed as chronic constipation and hiatal hernia, under Diagnostic Code 7319 for irritable colon syndrome. The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA’s Schedule for Rating Disabilities at 38 C.F.R. § 4.114. The Board points out that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. The Veteran’s specific disability, GERD, is not listed in the Rating Schedule. Initially, in the April 2008 rating decision which granted service connection for GERD with dysphagia and gastritis, the Veteran was assigned a noncompensable rating under Diagnostic Code 7346 for hernia hiatal. The Veteran was also granted service connection for IBS and assigned a noncompensable rating under Diagnostic Code 7319 for irritable colon syndrome. In the October 2020 rating decision which assigned a 10 percent rating for IBS and GERD, the Veteran was assigned the rating under Diagnostic Code 7319 because his IBS was the more disabling condition. Under Diagnostic Code 7319 for irritable colon syndrome (including spastic colitis, mucous colitis) a 10 percent rating is assignable for moderate symptoms, reflected by frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assignable for severe, diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. Under Diagnostic Code 7346 for hiatal hernia, a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. These classifications of considerable and severe impairment of health are not defined further in the rating schedule. The Board notes that the provisions of 38 C.F.R. § 4.112, highlight the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease. During a June 2011 VA examination, the Veteran reported that instead of IBS, she really has constipation and only has 1 bowel movement per month with no associated stomach pain. She reported having nausea. Her weight was noted to be stable. November 2011 VA treatment records document right upper abdomen pain with nausea. The record noted that the Veteran was evaluated 3 times for this pain in the emergency room, and that ultrasounds have shown cholelithiasis without cholecystitis. In December 2011, the Veteran underwent a laparoscopic cholecystectomy for symptomatic cholelithiasis. In a May 2012 VA examination for intestinal conditions, the Veteran was noted to have a diagnosis of IBS. She reported having chronic constipation, but was otherwise asymptomatic. She did not have any episodes of bowel disturbance or exacerbations or attacks of the intestinal conditions, nor did she experience any weight loss attributable to her intestinal condition. She also did not have any malnutrition, serious complications, or other general effects attributable to her intestinal condition. In a May 2012 VA examination for esophageal conditions, the Veteran was noted to have diagnoses of GERD and hiatal hernia. The Veteran reported having mild residual heartburn, however, Omeprazole has relieved some of her symptoms. The Veteran was otherwise asymptomatic, with no reported epigastric pain, abdominal pain, or dysphagia. The Veteran indicated that she continuously took Omeprazole as part of her treatment plan, and that she experienced pyrosis due to her GERD. The examiner also noted that there was no esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. In an October 2012 statement, the Veteran reported that following her cholecystectomy, she was still experiencing heartburn, indigestion, and was still not able to the use the bathroom. She also indicated that she experienced persistent abdominal pain, along with frequent trips to the bathroom. She noted that although her symptoms were not extreme, they were not mild either. Finally, she noted that she was prescribed Miralax, Prilosec, and stool softener to alleviate her stomach issues. During an October 2014 VA examination for intestinal conditions, the Veteran reported that she had no changes with regard to her IBS since the last VA examination in 2012. She continued to report symptoms of chronic constipation which she continuously takes medication for. The examiner noted that there was insufficient evidence to warrant or confirm a diagnosis of celiac disease. The Veteran did not have any episodes of bowel disturbance or exacerbations or attacks of the intestinal conditions, nor did she experience any weight loss attributable to her intestinal condition. She also did not have any malnutrition, serious complications, or other general effects attributable to her intestinal condition. In a January 2015 Notice of Disagreement, the Veteran reported that her IBS caused severe abdominal pain and that she had frequent episodes of bowel disturbances. She also reported experiencing bloating and severe abdominal pain related to her IBS. In a December 2016 private treatment record, the Veteran reported having IBS, heartburn, constipation, diarrhea, gas, bloating, and GERD. She denied having any abdominal pain, nausea, or vomiting. During the March 2018 Board hearing, the Veteran reported that she has been hospitalized for chest pains which turned out to be stomach pains. She also reported having heartburn and some vomiting, although she was now able to manage the vomiting. She denied having any difficulty swallowing. During an August 2019 VA examination for stomach and duodenal conditions, not including GERD, the Veteran reported that her GERD had improved after following a plant-based diet and that her symptoms had reduced, occurring 2-3 times per week. During her August 2019 VA examination for intestinal conditions, the Veteran reported that her bowel habits had not changed in the last 18 months. She reported that she has constant bloating with intermittent stomach pain, but that she has cut down on medication use. She continued to report having chronic constipation. She also indicated having frequent episodes of bowl disturbance with abdominal distress. She denied having any weight loss attributable to an intestinal condition, or any malnutrition, serious complications, or other general effects attributable to her intestinal condition. In a separate opinion, the VA examiner also noted that the Veteran denied having any weight loss due to her IBS, and that her weight has fluctuated between 190-210 pounds for many years. During her October 2020 VA examination for esophageal conditions, the Veteran reported experiencing pyrosis, reflux, sleep disturbances, and nausea due to her GERD. The examiner noted that her symptoms occurred 4 or more times per year and usually lasted less than a day. The examiner also noted that the Veteran’s GERD had remained unchanged since July 2012, and that a review of the medical record showed that her GERD and hiatal hernia were stable. During her October 2020 VA examination for intestinal conditions, the Veteran continued to report constipation with episodic diarrhea and bloating. She also reported having abdominal distension and nausea, with frequent episodes of bowel disturbance with abdominal distress. She denied having any weight loss attributable to an intestinal condition, or any malnutrition, serious complications, or other general effects attributable to her intestinal condition. As a preliminary matter, the Board finds that Diagnostic Code 7319 is the most appropriate criteria for rating the Veteran’s disability. Although the Veteran has a diagnosis of GERD, the record shows that her predominant symptoms of constipation and abdominal distress are contemplated by the rating criteria for irritable colon syndrome. Since June 2011, during every VA examination, the Veteran has reported symptoms of chronic constipation. In addition, in May 2012 and August 2019 VA examinations, the Veteran’s GERD was noted to be asymptomatic or improved. During the October 2020 VA examination, while the Veteran experienced some symptoms relating to her GERD, the examiner noted that her GERD and hiatal hernia were stable, and had remained unchanged since July 2012. Thus, application of Diagnostic Code 7319 is most appropriate. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (finding that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”). Upon consideration of the evidence, the Board finds that a rating of 10 percent, but no higher, for the appeal period prior to August 1, 2019 is warranted. Although VA examinations from May 2012 and October 2014 note that the Veteran did not have frequent episodes of bowel disturbance with abdominal distress, she did consistently report having chronic constipation which she had to manage with continuous medication. In addition, in her October 2012 statement, she reported having abdominal pain with frequent trips to the bathroom. In her January 2015 statement, she also reported having frequent episodes of bowel disturbances. In the opinion of the Board, such lay descriptions meet the criteria for a 10 percent rating prior to August 1, 2019. Thus, a uniform 10 percent rating under Diagnostic Code 7319, is warranted for the period prior to August 1, 2019. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for her IBS and GERD. Under Diagnostic Code 7319, a maximum 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Code 7319. The medical evidence of record does not show that the Veteran has severe IBS characterized by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Notably, in every VA examination of record, there has been no indication of constant abdominal distress. While the Veteran has reported symptoms of diarrhea, or alternating symptoms of constipation and diarrhea, she has not indicated that she experiences more than frequent episodes of bowel disturbance with abdominal distress. Accordingly, a rating in excess of 10 percent for IBS with GERD is not warranted. Based on the foregoing, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for IBS with GERD. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND As noted above, the regulations for musculoskeletal disabilities were recently revised. The Board observes that VA recently created Diagnostic Code 5285 to evaluate plantar fasciitis. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board finds that these are substantive changes and require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Notably, although the Veteran’s right and left foot disabilities are currently assigned ratings under Diagnostic Code 5280 for hallux valgus, the August 2019 VA examination shows that the Veteran also has a diagnosis of plantar fasciitis. Thus, a remand is necessary to readjudicate the claims. (continued on the next page) The matters are REMANDED for the following action: Readjudicate the Veteran’s increased rating claims for her left and right foot disabilities in accordance with the revised criteria for musculoskeletal disabilities. The AOJ should conduct any additional development necessary to the rate the disabilities, including obtaining additional examinations, if such is required. If the benefits sought are not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.