Citation Nr: 21027311 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-54 784 DATE: May 5, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a thoracic spine disability is granted. For the period on appeal, a rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 10 percent for a left knee disability (limited flexion) is denied. A rating in excess of 10 percent for a right knee disability (limited flexion) is denied. For the period on appeal, a rating of 10 percent, but no higher, for a left knee disability (slight instability) is granted. For the period on appeal, a rating of 10 percent, but no higher, for a left knee disability (slight instability) is granted. A rating in excess of 30 percent for a left foot disorder is denied. For the period on appeal, a rating of 50 percent, but no higher, for hiatal hernia and gastroesophageal reflux disease (GERD) is granted. A total rating based on individual unemployability (TDIU) is granted effective November 1, 2009 until January 31, 2010 and from September 1, 2011 until May 12, 2013. REMANDED Entitlement to service connection for a thoracic spine disability is remanded. FINDINGS OF FACT 1. In an August 2012 rating decision, the RO denied the claim for service connection for a thoracic disability. The Veteran did not timely appeal, and no new and material evidence was received within a year of the rating decision's issuance. 2. Additional evidence received since the August 2012 rating decision is new and related to unestablished facts necessary to substantiate the claim of service connection for a thoracic spine disability. 3. The Veteran's PTSD is productive of total occupational and social impairment. 4. The Veteran had bilateral flexion of at least 80 degrees. 5. During the period on appeal, the Veteran had slight bilateral knee instability. 6. The Veteran's left foot disability manifested by severe symptoms without actual loss of foot. 7. The Veteran's hiatal hernia and GERD manifested by severe esophageal strictures without marked impairment of health. 8. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from November 1, 2009 until January 31, 2010 and from September 1, 2011 until May 12, 2013. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied service connection for a thoracic spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the August 2012 rating decision is new and material, and the claim for service connection for a thoracic spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a rating of 100 percent for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 4. The criteria for a rating in excess of 10 percent for the left knee disorder (limited flexion) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 5. The criteria for a rating in excess of 10 percent for the right knee disorder (limited flexion) are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 6. For the period on appeal, the criteria for a rating of 10 percent, but no higher, for a left knee disability (slight instability) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 7. For the period on appeal, the criteria for a rating of 10 percent, but no higher, for a right knee disability (slight instability) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 8. The criteria for a rating in excess of 30 percent for a left foot disability are not met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.14, 4.31, 4.40, 4.45, 4.59, 4.71a, DC 5284. 9. The criteria for a 50 percent rating, but no higher, for hiatal hernia and GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.114, DC 7346-7203. 10. The criteria for TDIU are met from November 1, 2009 until January 31, 2010 and from September 1, 2011 until May 12, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from July 1995 to July 1999 and in the Army from November 1999 to December 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in January 2021; a transcript is of record. New and Material Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239, 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. Id. 1. Whether new and material evidence has been submitted to reopen the petition for service connection for a thoracic spine disability. In the August 2012 rating decision, the RO denied service connection for a thoracic spine disability. The RO stated that there was no nexus between the Veteran's disability and his military service. The Veteran did not timely appeal, no new and material evidence was submitted within one year of this RO determination, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). Since the final denial, the Veteran testified that he has reactive arthritis. Additionally, he explained that he injured his lower back in service twice. One incident he was thrown out of a Humvee. The other injury was when he twisted his back. He explained that while he sought medical treatment for the Humvee accident, he only had bruising and no further treatment. Therefore, the Board finds this evidence is new and material to the Veteran's claim as the evidence addresses a potential nexus for his thoracis disability. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (stating that the language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a previously denied claim). Therefore, the petition to reopen is granted. 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 percentages are based on the average impairment of earning capacity as a result of 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 the 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 will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Arthritis due to trauma is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development for this purpose or for obtaining retrospective opinions would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran's pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran's service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran's disability picture. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 2. Entitlement to a rating in excess for 70 percent for PTSD. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in November 2018. As such, the DSM-5 applies, and the GAF scores will not be considered as the appeal was pending at the RO when the final rule became effective. The Veteran underwent an examination in July 2015. The examiner reported occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. He had relationships with his wife, children, and his mother. He reported a history of suicidal ideations. His symptoms included depressed mood and sleep impairment (due to pain). His most recent examination is from January 2017. The examiner reported the Veteran had occupational and social impairment with reduced reliability and productivity. His symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, suicidal ideation, and obsessional rituals which interfere with routine activities. His thought process was logical, and goal directed. His mood was mildly dysphoric. He had decreased interest in reading and going for walks. He also had insomnia and impaired concentration. His suicidal ideations with some planning, and he reported holding a knife to his wrist. He submitted a lay statement that he had increased anxiety, anger and stress that comprised his work which led to his termination. He was terminated from a separate position in December 2016 due to inappropriate language, being argumentative, and the inability to work independently. Suicidal ideations were reported in the end of 2015, but without intent for self-harm. He had increased irritability with impaired sleep. He had chronic suicidal ideations with periodic thoughts where he imagined various ways to commit suicide but without any planning. He had frequent thoughts of suicide in 2016. The Veteran testified at a Board hearing in January 2021. He reported that he does not have homicidal ideations. However, he has some delusions, anger management difficulties, frequent thoughts of self-harm, occasional decreased in hygiene, distracted driving and memory loss, and social isolation outside of his family. After review of the competent and probative evidence, the Board finds that a 100 percent rating for PTSD is warranted for the period on appeal, as the Veteran's PTSD symptoms most closely approximated total occupational and social impairment. The Veteran has reported frequent suicidal ideations, thoughts, and planning during this period. He has held a knife to his wrists during this period on appeal. The Board acknowledges that he has not attempted suicide. However, he has a high frequency of suicidal ideations and some planning. Additionally, the Board acknowledges the 2015 and 2017 examiners did not find total occupational impairment. However, the Veteran has testified regarding his frequent suicidal ideations; his social isolation outside of his family; anger outburst; poor hygiene, and impaired memory. He reported some delusions. As such, the Board finds that when resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's history of suicidal ideation and planning, coupled with delusions, poor hygiene, anger outburst, and social isolation, demonstrate an overall disability picture of total social and occupational impairment. 3. Entitlement to a rating in excess of 10 percent for a left knee disability. 4. Entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran receives 10 percent ratings for his left and right knee under DC 5260. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5257 covers "other impairment of the knee," and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Other DCs concern motion and under DC 5260 leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. Effective February 7, 2021, VA amended DC 5257. For recurrent subluxation or lateral instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. A 20 percent rating is warranted when a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability; or b) an unrepaired or failed repair of a complete ligament tear causes peristent instability. A prescribed assistive device or bracing for ambulation is required. A 30 percent rating requires unrepaired or failed repair of complete ligament tear causing persistent instability and a prescription for both an assistive device and bracing for ambulation. For patellar instability also rated under DC 5257, a 10 percent rating is assigned for a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is a diagnosed condition with a prescription for either a brace, cane, or walker. A 30 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for brace and either a cane or a walker. Diagnostic Code 5262 was amended to now provide that "malunion of" the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes. Additionally, a noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints for treatment of less than 12 consecutive months, one or both lower extremities. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257, 5262). Prior to February 7, 2021, the Board will apply the prior rating criteria. From February 7, 2021 onward, the Board applies the criteria that is more favorable to the Veteran. The Veteran underwent an examination in August 2015. He had bilateral flare-ups with swelling, extreme pain, and decreased mobility. He did not report other functional loss or impairment. He had bilateral knee flexion of 80 degrees and normal extension (zero degrees). Both ranges of motion had pain that caused functional loss. He had pain with weight bearing. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. The examination was medically consistent with the Veteran's statements describing functional loss; and, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. He had less movement than normal, disturbance of locomotion, interference with sitting, and interference standing bilaterally. He had reduced muscle strength for flexion and extension (4/5 active movement against some resistance) bilaterally. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint instability testing (Anterior, Posterior, Medial, and Lateral) was normal. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted that he had functional impact due to difficulty with locomotion and prolonged bending. His most recent examination is from January 2017. He reported bilateral flare-ups with severe knee pain and inability to walk or bend his knees. He had functional impact with difficulty with stairs, inability to squat, and he would have to walk slowly. He had right knee flexion of 80 degrees and normal extension. He had pain on flexion that caused functional loss with the inability to squat. Mild tenderness was reported. He had 110 degrees for flexion (with pain) for his left knee and normal extension. He was able to perform three times repetitive use testing with no additional loss of function or range of motion bilaterally. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. For his right knee, pain significantly limited functional ability, but his range of motion testing remained the same. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability for his left knee. The examination was performed during a flare-up. For his right knee, pain significantly limited functional ability, but his range of motion testing remained the same. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability for his left knee. He had normal muscle strength and no atrophy. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint instability testing (Anterior, Posterior, Medial, and Lateral) was normal. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. Right knee effusion and warmness was shown. He regularly used a right knee brace. He did not have nor had he ever had a meniscus condition. His functional impact was that he was limited with walking or standing for extended periods and he had difficulty with kneeling, squatting, and with stairs. Right knee pain and swelling were documented in July 2017, and in August 2017. The Veteran testified at a Board hearing in January 2021. He acknowledged swelling, heat, clicking, pain, and some instability where he falls once or twice per year. He uses knee braces. After review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for the left and right knees are not warranted under DC 5260. The Veteran has had at least 80 degrees of flexion for his knees (30 degrees or less for the next higher rating). Additionally, when accounting for functional loss/impairment and during flare-ups, he has had at least 80 degrees of flexion. As such, ratings in excess of 10 percent under DC 5260 are not warranted. Additionally, separate ratings under DC 5261 are not warranted. The Veteran has had normal extension bilaterally during the period on appeal. The competent and probative evidence of record, to include the 2015 and 2017 examinations, show that he has had normal extension. As such, ratings under 5261 are not warranted. The Board finds ratings of 10 percent are warranted for both knees as the evidence shows that the Veteran has bilateral knee instability based his competent lay statements. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). He has testified that he falls due to knee instability one to two times per year. The Board acknowledges the medical testing showing normal stability. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that ratings of 10 percent is are warranted for the period on appeal as he reported that he falls one to two times per year due to his knees. A higher rating is not warranted as there is not competent evidence of instability (such as positive instability testing) or 3/5 weakness during this period on appeal as shown in the medical records and the examination reports (reflecting normal joint stability testing by a competent medical professional). Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value and given great weight. The Board acknowledges his reduced muscle strength (4/5) at the 2015 examination. However, the Veteran does not assert that he falls frequently or that his knees give out frequently. See Frequent, Merriam-Webster, https://www.merriam-webster.com/dictionary/frequent (defining the adjective "frequent" as, among other things, happing at short intervals or acting or returning regularly or often). Rather, he testified that he falls one to two times per year. Also, for example, the 2015 and 2017 examinations show normal joint stability testing. This competent medica evidence tends to weigh against moderate subluxation or lateral instability. As such, ratings in excess of the now assigned 10 percent are not warranted. Additionally, from February 7, 2021 onward, ratings of 20 percent are not warranted under the revised criteria as the evidence does not tend to show that the Veteran has a prescription for an assistive or bracing device. Additionally, his medical records do not show a sprain or ligament tear. Furthermore, separate ratings under DC 5258 are not warranted for the Veteran's knees as the Veteran does not have a meniscal condition. In support, the 2015 and 2017 examination reports specifically found that the Veteran does not now and had not ever had a meniscus condition. Likewise, a separate rating is not warranted under DC 5259 as the competent evidence does not show removal of symptomatic semilunar cartilage. Additionally, ratings under 5256 and 5262 are also not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. Lastly, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent ratings already contemplate and compensate the Veteran for any functional loss due to pain affecting the right and left knee, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that he had some pain and swelling. In light of the foregoing, the Board finds that increased ratings due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In this regard, VA regulations state that the knee is considered a single major joint. 38 C.F.R. § 4.45. 5. Entitlement to a rating in excess of 30 percent for a left foot disorder. The Veteran receives a 30 percent rating for his left foot disability under DC 5284. Diagnostic Code 5284 provides that a 10 percent rating is warranted for moderate foot injuries; a 20 percent rating is warranted for moderately severe foot injuries and a 30 percent rating is warranted for severe foot injuries. See 38 C.F.R. § 4.71a. Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. Id. See 38 C.F.R. § 3.350(a)(2) (2020) (describing loss of use of the foot in the context of special monthly compensation ratings and stating that the loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance and the determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. Additionally, the Court held in Prokarym v. McDonald, that a "severe" disability under DC 5276 is not equivalent to a "severe" disability under DC 5284. 27 Vet. App. 307, 312 (2015) (holding that 38 C.F.R. § 4.71a , DC 5284, does not apply to the other eight-foot conditions specifically listed that pertain to musculoskeletal disabilities of the foot). Additionally, the Federal Circuit has recognized DC 5284 as a "catch-all" provision covering foot disabilities not expressly contemplated by other DCs. Delisle v. McDonald, 789 F.3d 1372, 1372-75 (Fed. Cir. 2015). The Veteran underwent an examination in August 2015. At the time of the examination, he did not report pain, flare-ups, or functional loss/impairment. He had pain on physical examination that contributed to functional loss in that he had less movement than normal, and pain on movement and weight-bearing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when used repeatedly over a period of time. His functional impairment was not so extreme as it would be equally well served by amputation with prosthesis. The functional impact was that he could not exercise to be fit for jobs. His most recent examination is from January 2017. He reported constant pain, flare-ups where his foot was stiff, unresponsive, swollen, and painful. He had functional impairment with pain, stiffness, and swelling that made walking, driving and physical activity almost impossible. His pain on use of foot was accentuated. He also had pain on manipulation, but did not have swelling or characteristic calluses. He had pain on movement. He did not have pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when used repeatedly over a period of time. He had functional loss in that he could not walk or stand for long periods. The Veteran testified at a Board hearing in January 2021. He reported that he uses a cane, foot braces, and shoe inserts. He occasionally cannot put weight on his foot. After review of the competent and probative evidence, the Board finds that a rating in excess of 30 percent is not warranted as the Veteran does not have actual loss of his left foot. The Veteran's current symptomatology is reflected by severe or serious impairment. In this regard, the Board acknowledges his difficulty ambulating as well as pain and difficulty standing. However, the Veteran is able to perform these activities albeit for short periods of time. While he testified he cannot put his full weight on his foot at times, this does not occur at all time to be the equivalent to an amputation. The 2017 examination report reflect that he did not have functional impairment to such a degree so that he would be equally well served by an amputation with prosthesis. The definition concerning propulsion was considered by the examiner as it was in a note to section XVI of the report. As such, the evidence of record does not tend to demonstrate that the Veteran has functional impairment more nearly approximating actual loss of his left foot and a rating of 40 percent is not warranted. 6. Entitlement to a rating in excess of 30 percent for hiatal hernia and gastroesophageal reflux disease (GERD). The Veteran receives a 30 percent rating for his hiatal hernia and GERD under DC 7346-7203. Under Diagnostic Code 7346, a 10 percent rating is applicable to conditions with two or more of the symptoms listed in the 30 percent criteria of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Finally, the maximum, 60 percent disability rating requires pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. 38 C.F.R. § 4.114. Under DC 7203, a 30 percent rating is warranted for moderate stricture of the esophagus. A 50 percent rating is for severe strictures permitting liquids only. An 80 percent rating is when only liquids are permitted with marked impairment of general health. 38 C.F.R. § 4.114. Ratings under Diagnostic Codes 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, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran underwent an examination in August 2015. He took antacids. The examiner reported that he had persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance that occurred three times per year (lasting less than a day). He also had mild nausea and vomiting. Moderate esophageal stricture was reported where it was difficult to pass food that was similar in size to a pea. His most recent examination is from January 2017. He takes medication (Prilosec). His symptoms include dysphagia, pyrosis, reflux, and regurgitation. Esophageal strictures were not reported. The Board finds this examination to have less probative value than the 2015 examination as esophageal stricture was not reported. In this regard, the Veteran testified that he has esophageal stricture and the Board finds him to be competent and credible to report his symptoms. As just noted, the Veteran testified at a Board hearing in January 2021. For his hernia and GERD, he reported that he has frequent regurgitation and that food gets stuck in his throat. This requires dilation at least once per year. After review of the competent and probative evidence, the Board finds that a rating of 50 percent is warranted for the period on appeal under DC 7203. In this regard, he has had esophageal strictures that require annual dilation. He testified and the medical records show that he has difficulty swallowing anything pea sized or larger. The Board finds his symptoms analogous to severe stricture permitting liquid only. As such a rating of 50 percent, but no higher, under DC 7203 is warranted for the period on appeal. A rating of 80 percent is not warranted as his disability does not show marked impairment of general health. Additionally, a rating of 60 percent is not warranted under 7436 as his medical records and his credible lay statements do not show pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. The Veteran has testified that he does not vomit due to his disability. As such, a rating higher than 50 percent has not been more nearly approximated. 38 C.F.R. §§ 4.3, 4.7. 7. Entitlement to a TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. From January 26, 2009 onward, the Veteran's service-connected disabilities include PTSD at 50 percent; hiatal hernia and GERD at 30 percent, and others. He received a 100 percent rating from April 23, 2009 until November 1, 2009. He has a combined rating of 70 percent with a single disability rated at 40 percent or higher from January 26, 2009 onward. Therefore, his evaluation for compensation due to his service-connected disabilities met the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from January 26, 2009 onward. The Veteran's VA Form 21-8940 reported that he worked until March 2009 as a carpenter. He was employed as a driver from February 2010 until September 2011. He worked for Fedex from May 13, 2013 until March 2015. He has associate degrees, an architectural design degree, and a CDL. The effects of the Veteran's knee disabilities were reported in August 2015. The examiner noted that he had functional impact due to difficulty with locomotion and prolonged bending. The Veteran testified at a Board hearing in January 2021. For his PTSD, he reported that he has some delusions, anger management difficulties, frequent thoughts of self-harm, occasional decreased in hygiene, distracted driving, and memory loss. For his foot, he reported that he uses a cane, foot braces, and shoe inserts. He occasionally cannot put weight on his foot. For his knees, he acknowledged swelling, heat, clicking, pain, and some instability where he falls once or twice per year. He uses knee braces. He submitted a lay statement regarding the effects from his service-connected disabilities. He explained that he was fired from nearly half of his post-service jobs due to his PTSD. Other positions he was terminated because of physical limitations due to his service-connected disabilities. He had been terminated as a sewer worker due to PTSD-related symptoms (argumentative, inappropriate language, unable to work independently, etc.). In this case, the record reflects that the Veteran suffered from service-connected disabilities which hindered his ability to maintain gainful employment prior to January 13, 2015 (the date of the Veteran's 100 percent PTSD rating). The Board finds that TDIU is warranted from November 1, 2009 until January 31, 2010 and from September 1, 2011 until May 12, 2013 (the timeframes the Veteran was unemployed due to his service-connected disabilities). The Veteran's service-connected orthopedic disabilities hindered any physically intensive position as the Veteran is unable to stand or walk for extended periods. He has difficulty climbing stairs. Concerning sedentary employment, the Veteran's service-connected PTSD causes significant difficulty in working with others as well as being able to work independently as shown by his termination letter. Prior to January 13, 2015, the Veteran's service-connected orthopedic disorders and PTSD prevented employment, outside of the periods when he was employed, in a sedentary or physically intensive position due to poor ability to ambulate; anger outbursts, and difficulty with social and work interactions. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities prevented him from being able to secure or follow a substantially gainful occupation prior to January 13, 2015 for the time periods reported above. REASONS FOR REMAND Entitlement to service connection for a thoracic spine disability is remanded. The Veteran asserts service connection for a thoracic spine disability. He has current diagnoses of thoracic spine pain and Reiter's syndrome/reactive arthritis as reported in VA treatment records. However, it is somewhat unclear if the Veteran's reactive arthritis includes his thoracic spine. See1/3/2017, CAPRI Spine. Also, a thoracic spine strain was reported at the January 2017 examination. See 1/27/2017, C&P Examination spine. Concerning the reports of the Veteran's thoracic spine pain, the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a "disability" under § 1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, the Board finds that the Veteran reports thoracic spine pain which may indicate chronic pain and/or a persistent disability. The Veteran testified about injuring his back during service. He explained that while he sought treatment initially, the injury was minor. The Board finds him competent and credible to describe injuring his back in service, and pain beginning in service and continuing intermittently since that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The January 2017 examiner was not asked to provide a nexus opinion. As such, the Board finds that a new examination or addendum is warranted to address the Veteran's contentions and to provide a nexus opinion. This matters is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, schedule the Veteran for an examination. The examiner is to provide a diagnosis which accounts for the Veteran's symptoms for his thoracic spine during the period on appeal (January 2015 onward). If the examiner disagrees with previously reported diagnoses (thoracic strain/reactive arthritis), he or she must clearly explain why. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the "Functional Impact" section of the report. --Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's disability was caused by a disease or injury in service, to include his reported in-service back injuries? See 1/8/2021, Hearing Transcript, at 4-7. (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The Board has found the Veteran competent and credible to describe in-service back injuries. The Veteran's competent statements are to be considered in rendering an opinion. The examiner may not rely solely on the absence of back injuries reported in his service treatment records to provide a negative nexus opinion as the Board has found him competent and credible.** The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (Continued on the next page) If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.