Citation Nr: 21025216 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-55 014 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an increased rating in excess of 30 percent, for posttraumatic stress disorder (PTSD), prior to February 2, 2018, is denied. Entitlement to an increased rating in excess of 70 percent, for PTSD, from February 2, 2018, is denied. Entitlement to an increased rating in excess of 20 percent, for a neck disability, prior to August 21, 2020, is denied. Entitlement to an increased rating in excess of 30 percent, for a neck disability, from August 21, 2020 is denied. REMANDED Entitlement to a compensable rating, for gastroesophageal reflux disease (GERD) with hiatal hernia, prior to August 21, 2020, is remanded. Entitlement to an increased rating in excess of 10 percent, for GERD, from August 21, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have hearing loss for VA purposes. 2. Prior to February 2, 2018, the Veteran’s PTSD resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks 3. From February 2, 2018, the Veteran’s PTSD has not been productive of total occupational and social impairment. 4. Prior to August 21, 2020, the Veteran’s service-connected neck disability had not manifested to forward flexion being limited to 15 degrees or less, ankylosis, or an approximation of those symptoms. 5. From August 21, 2020, the Veteran’s service-connected neck disability has not manifested with ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a hearing loss disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to a rating in excess of 30 percent for PTSD, prior to February 2, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for a rating in excess of 70 percent for PTSD, from February 2, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9411. 4. The criteria for a rating in excess of 20 for a neck disability, prior to August 21, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 5. The criteria for a rating in excess of 30 for a neck disability, from August 21, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1997 to December 2014. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, service connection for certain chronic diseases, including hearing loss, may be established on a presumptive basis by showing that the condition manifested within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his current hearing loss began during service or was otherwise due to his active service. The Board finds, however, that there is no evidence of a hearing loss disability in either ear, diagnosed during the relevant claims period. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran received VA audiological examinations in October 2014 and March 2020. The results of these examination are as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 15 LEFT 15 20 15 25 15 Speech discrimination testing conducting during this examination under the Maryland CNC guidelines noted a 100 percent score for both ears. With regards to the March 2020 VA examination, the result are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 15 LEFT 20 15 15 25 15 Speech discrimination testing conducting during this examination under the Maryland CNC guidelines noted a 96 percent score for the right ear, and 98 percent for the left ear. Thus, the evidence does not show that the Veteran has a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Although the Veteran stated that he has hearing loss, his statements are not competent to establish the existence of a hearing loss disability for VA purposes, which requires audiometric testing and particular results, as opposed to observing symptoms of diminished hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Therefore, the Board finds that without a current disability of hearing loss, the claim for service connection cannot prevail. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board further notes that a review of the additional medical evidence of record reveals no additional objective testing requisite to constitute hearing loss disability. Consequently, as the preponderance of evidence is against the finding of a current disability of hearing loss for VA purposes, and the Veteran’s claim of service connection for hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). This review is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 2. Entitlement to an increased rating in excess of 30 percent, for posttraumatic stress disorder (PTSD), prior to February 2, 2018 The Veteran’s service-connected PTSD has been rated under the provisions of DC 9411. Under this DC, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in VA’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran contends that a higher rating than his current 30 percent rating is warranted for PTSD for the period prior to February 2, 2018. The Board finds that, prior to February 2, 2018, the PTSD symptoms combined to be productive of no more than occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which, warrants a 30 percent rating, but not higher. Therefore, the claim for an increased rating must be denied, for this relevant period. The Board finds that an exhaustive review of the medical records for a psychiatric disability shows the Veteran’s psychiatric symptoms were at a fairly consistent level since service connection was established. Throughout the relevant period, the psychiatric disability generally manifested symptoms of sleep disturbance, depressed mood, and anxiety. Prior to February 2, 2018, the Veteran was afforded a VA examination in October 2014 that assessed the nature and severity of his PTSD. At a VA examination in October 2014, the Veteran was found to have occupational and social impairment with only mild transient symptoms which decreased work efficiency and ability to perform occupational task only during period of significant stress, or, symptoms controlled by medication. The Veteran was married at the time of the examination and lived with his wife and their four kids. The Veteran described a good relationship with his sister. The Veteran noted engagement in various activities and hobbies, such as fixing old cars, and attending social engagements with his family, such as going out to eat. While the Veteran complained about some irritability and anxiety, the examiner noted that he was mostly concerned about his sleep disturbance with nightmares. Upon examination, some hypervigilance was noted along with some irritability, but the Veteran noted he had both under control and were much better. The examiner explicitly noted that the Veteran had no issues with establishing or maintaining social or occupational relationships. During the examination, the Veteran was noted as having no clinical distress, was noted to be well-groomed and dressed, was alert, oriented, with clear and coherent speech, thoughts, and judgment. The examiner noted that Veteran reported no hallucinations or delusions. His affect was somewhat depressed and anxious, but there was no notation of panic attacks. No memory loss issues were noted. Overall, the examiner only cited symptoms of depressed mood, anxiety, and chronic sleep impairment. Other than the VA examination, the Veteran has submitted several private psychiatric evaluations and treatment records from his private treating physician. A close review of these assessments/treatment records reveals no additional, or more severe symptoms related to his psychiatric disabilities. These treatment records ostensibly outline a similar array of symptoms and manifestations as noted in the VA examination, to include depression, anxiety, and sleep impairment. The vast majority of these records note that the Veteran’s consistently noted no issues with panic attacks, orientation, memory, personal hygiene, grooming, speech, or affect. While the Veteran has been noted to continue his report of some irritability and hypervigilance, no record has noted any specific or ongoing instances of such manifestations. Here, the most notable symptom of the Veteran’s psychiatric condition for the time period on review remains his sleep disturbance, to include nightmares. Like noted in the VA examination, the treatment records and lay statements indicate that the Veteran experienced nightmares, to include shouting while asleep, sweating, and increased movements. However, despite this, the Veteran does not report having, and the medical evidence does not indicate, any hallucinations or delusions. Moreover, the Veteran, during this time, remained married, and employed. To this end, the Board does acknowledge that in a November 2016 private psychiatric treatment note, the Veteran was noted to be suffering from more severe symptoms, to include complaining about issues of concentration, memory loss, and frustration. The Board, however, finds that such array of increased symptomology is considered acute, as the surrounding records do not demonstrate any issues with memory, concentration, or the ability to follow directions and/or complete tasks. Here, in a January 2017 general medical note, his treating physician noted that the Veteran’s anxiety was all but resolved, and that while he had some hypervigilance when going out, he was still working at an automobile shop, had a friend, and enjoyed working on cars. The Board finds that the criteria for the next higher 50 percent rating are not demonstrated by the evidence of record prior to February 2, 2018, as the Veteran’s psychiatric disability was not manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. The Board finds that a higher 50 percent rating is not warranted. Specifically, here preponderance of evidence show that the Veteran had some issues with depressed mood, anxiety, and nightmares, but was not so severe as to cause panic attacks, abnormal speech, inability to understand instructions, or issues with memory. In fact, both VA and private medical records explicitly note that, ostensibly, the Veteran always was cooperative, with normal speech, judgment, thought, and mood, with no noted difficulty understanding instruction or suffered from panic attacks. The Veteran had not been chronically noted to suffer from any memory issues, or difficulty concentrating. Furthermore, the Veteran does not demonstrate any difficulty with maintaining work and social relationships. Here, during the relevant period, while the Veteran complained of hypervigilant feelings and some isolation issues, he remained married and lived with his wife and children. He engaged with his siblings and was consistently been noted to have friends. During the VA examination, the Veteran was also noted to occasionally dine out with his family and to engage in hobbies. The Veteran was also noted to be employed during this period, with no assertion of specific instances affecting his employment, or uncontrollable outbursts. Therefore, the Board finds that an even higher, 70 percent rating is not warranted. Similarly, an even higher rating of 100 percent is not warranted as the evidence does not reflect the Veteran exhibited 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name causing a total occupational and social impairment. In so determining, the Board finds the VA examiner’s opinion to be competent, credible, persuasive, and probative, and adequately represent the contemporaneous nature and severity of the Veteran’s PTSD. The VA examination was based upon a review of the record and thorough interview with the Veteran and was well-explained and detailed. Most importantly, the VA examination was performed by a medical professional with the proper training, education, and experience, in the appropriate fields, in this case, a clinical psychologist. It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board places greater probative weight on the VA examination than on the Veteran’s lay contentions because of the training and expertise of the examiners and because the examiners applied the pertinent psychiatric diagnostic criteria. To the extent that the Veteran’s lay statements are competent, credible, and probative, the Board finds that they are outweighed by the VA examination opinion. The Board finds that when all of the medical evidence is reviewed, including the VA examinations, the evidence shows that the psychiatric disability was manifested by symptoms of depressed mood, anxiety, and sleep disturbance. Those symptoms more nearly approximate an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Considering the totality of the Veteran’s medical records and claims, the functional impairment of the psychiatric disability does not amount to more nearly approximating occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that a rating higher than 30 percent is not warranted for PTSD prior to February 2, 2018. Therefore, as the preponderance of the evidence is against the claim for a rating in excess of 30 percent for a psychiatric disability, the claim for an increased rating is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an increased rating in excess of 70 percent, for PTSD, from February 2, 2018 The Board also finds that the Veteran’s PTSD does not meet the criteria for a higher, 100 percent rating, for the relevant period from February 2, 2018. To this end, the Board notes that a 100 percent rating is only warranted for 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. 38 C.F.R. § 4.130, DC 9411. Here, there has been no evidence presented that shows that the Veteran PTSD renders him totally impaired, to include not being able to take care of himself or maintain his physical hygiene. To this end, the evidence is quite to the contrary; the Veteran has never been noted to be grossly inappropriate during any treatment, evaluation, or examinations sessions of record. In fact, in all VA examinations (both the April 2018 and March 2020 examinations) or VA medical/treatment records, the Veteran was been explicitly noted to be oriented, appropriately dressed, polite, and coherent, with clear speech, good eye contact, unimpaired throughout process, and judgment. Likewise, at no point during the entire claims period has there been evidence of persistent delusions or hallucinations, with no evidence of memory loss. The April 2018 VA examination report reflects the examiner’s conclusion that the Veteran’s PTSD symptoms results in occupational and social impairment with reduced reliability and productivity. On examination, the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of mood and motivation, difficulty establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances. The examiner noted that the Veteran appeared sullen, disheveled, and depressed. He was mildly irritable, but polite. The Veteran reported having a good relationship with his wife, with whom he shared four children. He stated that he previously worked as an automotive mechanic, but that he quit his job in 2016 because he of a disagreement with the owner over his overtime pay; he indicated that he quit because he did not want to lose his temper. He said that he last tried to work as a mechanic six month prior; the examiner noted that the Veteran had what appeared to mechanic grease stains on his hands. The examination was negative for evidence of impaired thought processes or thinking, suicidal thoughts, hallucinations, obsessional rituals, disorientation, grossly inappropriate behavior, neglect of hygiene, or memory impairment. The Veteran was not found to be a danger to himself or others, or unable to perform activities of daily living. On the Veteran’s most recent VA psychiatric examination in March 2020, the examiner explicitly noted that the Veteran’s PTSD was manifested by symptoms that cause occupational and social impairment with reduced reliability and productivity. The examiner found that the Veteran suffered from depressed mood, anxiety, suspiciousness, sleep impairment, panic attacks, disturbance in mood and motivation, an inability to maintain effective work/social relationships, and some impulse control. However, the examiner noted explicitly that the Veteran was casually dressed, well groomed, calm, and cooperative, with good eye contact and normal speech. The Veteran remains married with children, whom he lives with, and during the examination noted that while he was hypervigilant when going out, he does go out with his family. The Board finds that while the Veteran’s condition fulfills some elements under the criteria for a 100 percent rating, the totality of the Veteran’s disability picture does not show symptoms that are such a frequency, severity, or duration to more closely approximate total occupational and social impairment. The Board notes that psychiatric professionals have evaluated the totally of the Veteran’s PTSD for the appeal period. An evaluation of such examinations, and a review of the remaining VA medical/treatment records, and lay statements, demonstrates symptoms such as irritability, anxiety, depressed mood, sleep disturbance, isolative behavior, irritability, and angry outbursts. No medical or lay evidence, to include VA examinations noted any issues with speech, orientation, thought process, or, a total occupational or social impairment. Therefore, the Board finds that a 100 percent rating was not warranted. Consequently, as the preponderance of the evidence is against the claim for a higher 100 percent rating for PTSD, for the entire appeal period, the claim for increased rating must be denied for the period from February 2, 2018. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an increased rating in excess of 20 percent, for a neck disability, prior to August 21, 2020 5. Entitlement to an increased rating in excess of 30 percent, for a neck disability, from August 21, 2020 In addition to the general consideration for increased rating claims explained above, the Board also notes, pertinent to these claims, that when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2016). The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The rating for the Veteran’s cervical spine disability has been assigned under Diagnostic Code 5243 (IVDS). The criteria for rating all musculoskeletal spine disabilities are set forth in the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), at 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted 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 and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 2 provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and the normal combine range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. IVDS is rated under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Board notes that during the pendency of the Veteran’s increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain diagnostic codes and amended the rating criteria for several diagnostic codes listed under 38 C.F.R. § 4.71a. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).” As there is no indication that the above amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. As relevant to the Veteran’s disability in terms of IVDS, prior to February 7, 2021, the rating criteria indicated that DC 5243 contemplated IVDS. Effective from February 7, 2021, the rating criteria still list IVDS under DC 5243, but also instruct that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Here, as the application of the recent rule change does not produce a higher rating with regards to the Veteran’s cervical spine disability, no further discussion regarding this is necessary. Pertinent evidence of record consists of private and VA treatment records, VA examinations, and lay statements from the Veteran and his representative. During the course of the Veteran’s claims period, the Veteran was afforded two VA examinations, to include in October 2014 and August 2020, to assess the nature and severity of his service-connected neck disability. On VA spine examination in October 2014, the Veteran reported constant neck pain. On physical examination, range of motion testing of the cervical spine revealed flexion limited to 30 degrees, with objective signed of pain starting at the end points. Repetitive motion testing noted pain and additional functional loss of range of motion of forward flexion to 20 degrees. There was no evidence of tenderness and/or pain on palpation, or muscle spasms/guarding. Muscle strength, reflex and sensory examinations were all noted normal. No ankylosis was found on examination. With regards to IVDS, the Veteran was noted to have incapacitating episodes of at least two weeks, but less than four weeks, in the last 12 months, prior to the examination. The examiner ultimately diagnosed the Veteran with cervical strain with IVDS. With specific regards to flare-ups and pain, the examiner explicitly noted flare-ups and pain did cause additional functional loss, to include reduced range of motion. However, the examiner estimated that such reduction in range were only limited to 20 degrees of flexion at worse. The Veteran was afforded another VA cervical spine examination in November 2020. Based on the results of the examination, the Veteran was again diagnosed with cervical strain with IVDS. He reported increased pain and flare-ups upon persistent/repetitive activity. On range of motion testing, flexion was limited to 10 degrees, extension limited to 10 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 20 degrees, and left lateral rotation limited to 20 degrees. Objective evidence of pain was noted on all planes upon testing. Abnormal range of motion was attributed to pain. The Veteran was able to perform repetitive use testing; post-testing range of motion was reduced to limitation of 5 degrees across all planes, to include flexion. It was noted repetitive use caused less movement than normal and pain in the cervical spine. While flare-ups were also noted to cause functional loss, the examiner estimated that such of range of motion upon flare-ups were similar to that noted on repeat motion testing. No ankylosis were found, and incapacitating episodes due to IVDS was limited to a duration of 1-2 weeks of bed rest, during the last 12 months. VA treatment records for this period after active service provide no additional diagnoses to include any findings akin to ankylosis or incapacitating episodes. Likewise, a close review of the private treatment records submitted also relates nothing in terms of objective measurements of the Veteran’s actual range of motion. These records, like the VA records, also do not note a diagnosis of ankylosis of the cervical spine at any point during the claims period. The vast majority of these VA and private treatment records involve pain management. Prior to August 21, 2020 The Veteran was awarded service connection for his cervical spine disability in a May 2015 rating decision, and assigned a 20 percent rating, effective the day after his active service. In response, the Veteran requested an increased rating, and after further development, the Veteran was granted a staged higher rating of 30 percent, effective August 21, 2020, in a September 2020 rating decision. The Veteran has continued his claim for a higher rating for both periods. With regards to the earlier period, prior to August 21, 2020, the Board finds that the above evidence reflects that the Veteran’s cervical spine disability has been manifested by painful limited motion and some incapacitating episodes. During relevant period, the Veteran has been able to achieve forward flexion of at least 20 degrees, even considering pain on repeat motion, and flare-ups, and active motion on all other plans. This range of motion, by itself is contemplated by no more than a 20 percent rating under the General Rating Formula. 38 C.F.R. § 4.71(a)(3). As noted above, the next higher rating of 30 percent, under the relevant DC and the General Rating Formula, requires forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A close review of the VA and private treatment records, and the October 2014 VA examination reveals no evidence that the Veteran’s range of motion is limited to 15 degrees or less of forward flexion. The Board points out that in the October 2014 examination, the VA examiner noted objective results of the Veteran’s forward flexion to only be limited to 20 degrees upon repeat testing, and explicitly noted that even considering functional loss during flare-ups, the loss of forward flexion would only be estimated to be limited to 20 to 30 degrees. Likewise, there is no evidence that the Veteran’s cervical spine was fixed in position or ankylosed. He retained the ability to move his spine (albeit a somewhat limited ability). During the VA examination, and throughout both private and VA treatment records, there has been no evidence of ankylosis. In fact, even the contemporaneous reporting of the Veteran of his symptoms have not explicitly noted an inability to move his neck, so to be akin to ankylosis. The Board notes that the Veteran has repeatedly complained of significant pain including flare-ups as a result of his cervical spine disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996). However, the Board has taken into consideration the objective evidence documenting increased functional impairment due to those reports of pain, and an evaluation beyond the one currently assigned is not warranted. The Board recognizes that flare-ups of pain were documented by the VA examination report. Although the October 2014 VA examiner noted that findings were medically consistent with the Veteran’s statements describing functional loss attributed to repetitive use over time and flare-ups, such loss of range of motion, even during flare-ups, were only estimated by the examiner to be only 20 degrees. This is reflected by the objective results from repeat testing. While the Board is required to consider the effect of the Veteran’s pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Veteran is already being adequately compensated for pain. The Board also finds no evidence that the Veteran experienced any symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician, to a duration in which would yield a higher rating. Although the October 2014 VA examination the Veteran was noted to experience incapacitating episodes due to IVDS, the duration of such episodes was only noted to be limited to 2 to 4 weeks, for the last 12 months; such duration is contemplated only by a 20 percent rating, with the next higher rating of 40 percent, requiring a duration of 4 to 6 weeks. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. As such, the Board finds the even considering the Veteran’s IVDS, the criteria for a higher rating in excess of 20 percent is not warranted. In making this finding related to IVDS, the Board is cognizant that the Veteran’s has expressed, to include in his Notice of Disagreement, that he experiences incapacitating episodes much more frequently. To this end, the Veteran noted that he experienced episodes equivalent to “months” of incapacitation due to his neck disability. In analyzing this claim, the Board has carefully considered the Veteran’s contentions, however, by definition, the Veteran is not competent to competent to speak to physician prescribed bed rest, that may qualify as incapacitating episodes. Under the relevant diagnostic code, and noted above, an incapacitating episode is 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., at Note (1). [emphasis added]. As such, the Board finds that VA examination report to be more probative in establishing incapacitating episodes, and as the October 2014 VA examination has only noted 2 to 4 weeks duration of episodes, a higher rating for IVDS is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any ratings in excess of 20 percent for his neck disability, prior to August 21, 2020. As the preponderance of the evidence is against the assignment of any higher ratings, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. From August 21, 2020 With regards to the later period from August 21, 2020, the Board notes that the Veteran is currently assigned a 30 percent disability rating for his neck disability; the next higher rating of 40 percent is not warranted unless there is a finding of favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to IVDS with a duration of 4 to 6 weeks, in the last 12 months. The Board finds that a close review of the record reveals no evidence of any ankylosis, and/or incapacitating episodes with a total duration of 4 to 6 weeks. As such, the Board finds that a higher rating is not warranted, and the Veteran’s claim must be denied. Here, the Veteran was afforded a VA examination in August 2020. Upon examination of the Veteran’s cervical spine, the Veteran was noted to have movement on all planes, albeit diminished, to include after repeat motion testing. The examination also considered functional loss, to include especially during flare-ups, and noted no additional loss of motion. The examiner also noted explicitly no finding of ankylosis. These results are ostensibly corroborated by the other medical evidence of record, to include the Veteran’s submitted private treatment records, which does not, at any point, provide a diagnosis of ankylosis, or a range of motion akin to ankylosis. Therefore, the Board must find that a higher rating is not warranted under the General Rating Formula, as no ankylosis is shown. 38 C.F.R. § 4.71a. Likewise, a higher rating is also not warranted based on incapacitating episodes due to IVDS. Here, again, during the VA examination, the Veteran was only noted to have incapacitating episodes with a duration of 1 to 2 weeks in the last 12 months. Other than this objective account of the Veteran’s IVDS in the VA examination report, there is no additional evidence of record for this relevant period that denotes physician prescribed bed rest (incapacitating episodes) of any duration in excess of that noted by the examination. As such, the Board must find that a right rating based on IVDS is also not warranted as 4 to 6 weeks of incapacitating episodes have been noted in the evidence. For these reasons and bases, an increased rating is not warranted; and as the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating, for GERD with hiatal hernia, prior to August 21, 2020, is remanded. 2. Entitlement to an increased rating in excess of 10 percent, for GERD, from August 21, 2020, is remanded. In November 2018, the Board remanded the issue of entitlement to an increased rating for GERD. In that remand, the Board explicitly found that the previous VA examinations assessing the nature ans severity of the Veteran’s GERD was inadequate, as they failed to address the Veteran’s disability while not on medication. To this end, the Board, in its remand directives, explicitly and intentionally, requested that the examiner must explicitly speak to the Veteran’s GERD symptoms and manifestations outside the relieving effects of medication. Pursuant to the Board’s remand directives, another examination was afforded to the Veteran in August 2020. However, the Board finds this examination report to be again inadequate for adjudication purposes, as it is again unclear whether the VA examiner specifically gave consideration to the Veteran’s symptoms and/or manifestations of his GERD, outside of his medications. Here, a close review of the VA examination reports notes that while the VA examiner noted that the Veteran took continuous medication for his GERD, the report does not note that such examination was conducted with or without consideration of the effects of that medication. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has not been substantial compliance with the Board’s last remand directives. Accordingly, the Board must remand the matter again for a VA addendum opinion. 3. Entitlement to a TDIU is remanded. Finally, the issue of a TDIU is inextricably intertwined with the issues of increased rating, remanded herein, as TDIU is determined by whether and at which rate a disability is service-connected. As such, both issues must be remanded and adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected GERD with hiatal hernia. The examiner must review the entire record in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability, specifically WITHOUT consideration of the effects of medication. The examiner should use lay observations specifically elicited from the Veteran. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). A rationale based on the fact that the Veteran is currently medicated will not be adequate. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.