Citation Nr: 21028450
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 16-00 043
DATE: May 11, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an initial disability rating in excess of 10 percent for left knee medial meniscal tear status post partial medial meniscectomy is denied.

Entitlement to an initial disability rating in excess of 20 percent for left knee instability is denied.

Entitlement to an initial disability rating in excess of 10 percent prior to August 22, 2018 for lower back strain is denied.

Entitlement to a disability rating in excess of 20 percent from August 22, 2018 for lower back strain is denied.

Entitlement to an initial disability rating in excess of 50 percent prior to December 8, 2014 for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a disability rating in excess of 70 percent from December 8, 2014 for PTSD is denied.

Entitlement to an initial disability rating in excess of 20 percent prior to March 4, 2014 for temporomandibular articulation (TMJ) is denied.

Entitlement to a disability rating in excess of 10 percent from March 4, 2014 to December 15, 2020 for TMJ is denied.

Entitlement to a disability rating in excess of 40 percent from December 16, 2020 for TMJ is denied.

Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied.

Entitlement to an initial disability rating of 10 percent for bilateral dry eye syndrome with recurrent corneal erosion is granted.

Entitlement to an initial disability rating in excess of 10 percent for bilateral dry eye syndrome with recurrent corneal erosion is denied.

Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor is denied.

Entitlement to an initial compensable disability rating for internal hemorrhoids is denied.

Entitlement to an initial compensable disability rating for gastroesophageal reflux disease (GERD) prior to November 25, 2019; is denied.

Entitlement to a disability rating in excess of 10 percent for GERD from November 25, 2019; is denied.

Entitlement to an initial compensable disability rating for pseudofolliculitis barbae is denied.

Entitlement to an initial disability rating in excess of 10 percent prior to April 9, 2019 for right prepatellar bursitis, status post bursectomy is withdrawn.

Entitlement to a disability rating in excess of 10 percent from June 1, 2019 for right prepatellar bursitis, status post bursectomy is withdrawn.

Entitlement to an initial disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty prior to June 27, 2013 is withdrawn.

Entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from September 1, 2013 through September 30, 2018 is withdrawn.

Entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from October 1, 2018 through January 10, 2019 is withdrawn.

Entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from March 1, 2019 is withdrawn.

FINDINGS OF FACT

1. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss at any time during or approximate to the pendency of the claim.

2. The preponderance of the evidence of record is against finding that the Veteran's left knee medial meniscal tear status post partial medial meniscectomy produced a limitation of range extension limited to 60 degrees or less throughout the period on appeal.

3. The preponderance of the evidence of record demonstrates that from December 2020, the Veteran's service-connected left knee disability produced moderate instability.

4. Prior to August 22, 2018, the Veteran's lower back strain is manifest by forward flexion was 0 to 90 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 30 degrees; left lateral flexion 0 to 30 degrees; right lateral rotation 0 to 30 degrees; and left lateral rotation 0 to 30 degrees with a combined range of motion of the thoracolumbar spine of 240 degrees.

5. From August 22, 2018, the Veteran's lower back strain is manifested by no worse than flexion was 0 to 60 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 25 degrees; left lateral flexion 0 to 25 degrees; right lateral rotation 0 to 25 degrees; and left lateral rotation 0 to 25 degrees; with a combined range of motion of the thoracolumbar spine of 180 degrees.

6. Prior to December 8, 2014, the severity, frequency, and duration of the Veteran's symptoms for PTSD, also claimed as anxiety, depression, and sleep disturbances did not more closely approximate occupational and social impairment with deficiencies in most areas.

7. From December 8, 2014, the severity, frequency, and duration of the Veteran's symptoms for PTSD, also claimed as anxiety, depression, and sleep disturbances did not more closely approximate total occupational and social impairment.

8. Prior to March 4, 2014, the Veteran's TMJ produced inter-incisal distance of 30 mm without a restricted diet.

9. From March 4, 2014 to December 15, 2020, the Veteran's TMJ produced inter-incisal distance of greater than 30 mm without a restricted diet.

10. From December 16, 2020, the Veteran's TMJ produced inter-incisal distance of 0 to 10 mm without a restricted diet.

11. Throughout the period on appeal, the Veteran's tinnitus has been rated at 10 percent disabling (the maximum schedular rating for tinnitus); factors warranting extraschedular rating are not shown.

12. The Veteran's bilateral dry eye syndrome with corneal erosion manifests as dry, irritated, and painful eyes without impairment to the Veteran's visual acuity nor incapacitating episodes.

13. Throughout the period on appeal, the Veteran's tinea versicolor affects less than 20 percent of the entire body and none of the exposed areas and has not involved treatment from corticosteroids or other immunosuppressive drugs approximating systemic therapy.

14. The severity, frequency, or duration of the Veteran's hemorrhoid symptoms did not more nearly approximate large hemorrhoids; thrombotic; irreducible, with excessive redundant tissue; evidence of frequent recurrences; persistent bleeding with secondary anemia; or fissures. 

15. The Veteran's GERD did not more nearly approximate two or more symptoms for the 30 percent rating under Diagnostic Code 7346 of less severity prior to November 25, 2019.

16. The Veteran's GERD did not more nearly approximate symptoms that were productive of considerable impairment of health from November 25, 2019.

17. The Veteran's pseudofolliculitis barbae covered less than 5 percent of the Veteran's exposed body area and less than 5 percent of the Veteran's total body area with eruption of raised lesions to the neck with raised erythematous lesions.

18. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to an initial disability rating in excess of 10 percent from February 26, 2013 through April 9, 2019 for right prepatellar bursitis, status post bursectomy; is requested.

19. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to a disability rating in excess of 10 percent from June 1, 2019 for right prepatellar bursitis, status post bursectomy; is requested.

20. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from April 1, 2013 through June 27, 2013; is requested.

21. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from September 1, 2013 through September 30, 2018; is requested.

22. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from October 1, 2018 through January 10, 2019; is requested.

23. On May 23, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeal for entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from March 1, 2019; is requested.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for a rating in excess of 10 percent for left knee medial meniscal tear status post partial medial meniscectomy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003, Diagnostic Code 5010, Diagnostic Code 5260.

3. The criteria for a rating in excess of 20 percent for left knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

4. The criteria for a rating in excess of 10 percent for lower back strain prior to August 22, 2018; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

5. The criteria for a rating in excess of 20 percent for lower back strain from August 22, 2018; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

6. Prior to December 8, 2014, the criteria for a disability rating in excess of 50 percent for PTSD 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 9411.

7. Since December 8, 2014, the criteria for a disability rating in excess of 70 percent for PTSD 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 9411.

8. The criteria for entitlement to an initial disability rating in excess of 20 percent prior to March 4, 2014 for TMJ have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, Diagnostic Code 9905.

9. The criteria for entitlement to a disability rating in excess of 10 percent from March 4, 2014 to December 15, 2020 for TMJ have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, Diagnostic Code 5003, Diagnostic Code 5010, Diagnostic Code 9905.

10. The criteria for entitlement to a disability rating in excess of 40 percent from December 16, 2020 for TMJ have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, Diagnostic Code 9905.

11. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005) rev'd, 451 F.3d 1344 (Fed. Cir. 2006).

12. The criteria for a disability rating of 10 percent, but not higher, for bilateral dry eye syndrome with recurrent corneal erosion have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code 6018.

13. The criteria for entitlement to an initial disability rating in excess of 10 percent for tinea versicolor have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14, 4.118, Diagnostic Code 7806, Diagnostic Code 7820, Diagnostic Code 7828.

14. The criteria for an initial compensable disability rating for hemorrhoids have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.114, Diagnostic Code 7336.

15. The criteria for a compensable rating for service-connected GERD prior to November 25, 2019; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code 7346.

16. The criteria for a disability rating in excess of 10 percent for service-connected GERD; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346.

17. The criteria for entitlement to an initial compensable disability rating for pseudofolliculitis barbae have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7899-7828.

18. The criteria for withdrawal of an appeal by the appellant for entitlement to an initial disability rating in excess of 10 percent from February 26, 2013 through April 9, 2019 for right prepatellar bursitis, status post bursectomy; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

19. The criteria for withdrawal of an appeal by the appellant for entitlement to an initial disability rating in excess of 10 percent from June 1, 2019 for right prepatellar bursitis, status post bursectomy; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

20. The criteria for withdrawal of an appeal by the appellant for entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from April 1, 2013 through June 27, 2013; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

21. The criteria for withdrawal of an appeal by the appellant for entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from September 1, 2013 through September 30, 2018; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

22. The criteria for withdrawal of an appeal by the appellant for entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from October 1, 2018 through January 10, 2019; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

23. The criteria for withdrawal of an appeal by the appellant for entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from March 1, 2019; have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from October 2008 until his honorable discharge in February 2013.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Providence, Rhode Island Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In June 2019, the Board remanded the case to the RO for further development.  Specifically, the Board directed the RO to obtain updated VA treatment records and to obtain VA examinations.

The Board also notes that during the entire period on appeal, specifically since February 26, 2013 [the date after his separation from active service], the Veteran has been rated at an overall disability rate of no less than 100 percent disabled.

Service Connection

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, 1131; 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 to a degree of 10 percent or more 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).

1. Entitlement to service connection for bilateral hearing loss

The Veteran asserts that he is entitled to service connection for bilateral hearing loss.

The Board finds that there is not a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran was afforded a VA examination in April 2012.  On the authorized audiological evaluation in April 2012, pure tone thresholds, in decibels, were as follows:

 	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	30	20	20	15	10

LEFT	20	25	20	20	15

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.

The Veteran was afforded a second VA examination in September 2018.  On the authorized audiological evaluation in September 2018, the examiner determined that the results were inconsistent with organic hearing loss and pure tones were obtained with poor reliability.  Furthermore, the September 2018 examiner noted that the Veteran's word recognition scores were excellent at a level below the admitted thresholds.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.

The Veteran was afforded a third audiological evaluation in December 2019.  On the authorized audiological evaluation in December 2019, pure tone thresholds, in decibels, were as follows:

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	20 	15	20	25	20

LEFT	20	15	20	10	20

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.

For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent.

In the present case, the Veteran does not meet any of the criteria for hearing loss to be considered a disability for VA purposes at any point throughout the period on appeal.

In the absence of a disability during the pendency of the claim, service connection cannot be established.  See Brammer v. Derwinski, 2 Vet. App. 223 (1992).  There is also insufficient evidence of a disability at any point during the claim period or shortly before.  See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Accordingly, entitlement to service connection is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. § 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

2. Entitlement to an initial disability rating in excess of 10 percent for left knee medial meniscal tear status post partial medial meniscectomy

3. Entitlement to an initial disability rating in excess of 20 percent for left knee instability

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his left knee disability.

As a preliminary matter, during the period on appeal, the Veteran was granted service connection for left knee instability under Diagnostic Code 5257 effective December 16, 2020 and rated at 20 percent disabling.  Prior to December 16, 2020, the Veteran was service connected for only left knee medial meniscal tear status post partial medial meniscectomy under Diagnostic Code 5259-5260 since February 26, 2013.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen.  38 C.F.R. § 4.27.

Left knee medial meniscal tear status post partial medial meniscectomy from February 26, 2013

The assigned Diagnostic Code 5259-5260 suggests that the Veteran's left knee medial meniscal tear status post partial medial meniscectomy is rated based on compensable limitation of flexion and/or extension.  38 C.F.R. § 4.71a.  A review of the evidence reflects that the Veteran's left knee medial meniscal tear status post partial medial meniscectomy has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the left knee medial meniscal tear status post partial medial meniscectomy has not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period.

Specifically, throughout the period on appeal, the Veteran's limitation on range of motion has been no worse than limitation of flexion of 0 to 65 degrees.  See December 2020 VA examination, p. 5.  Furthermore, although the Veteran did report flare-ups of intermittent pain while sleeping, there were no reports of limitation of range of motion during flare-ups.  See December 2020 VA examination, p. 4.  The September 2018 VA examination found that the Veteran's limitation of flexion was 0 to 120 degrees.  See September 2018 VA examination, p. 5.  The Veteran did not report flare-ups during the September 2018 VA examination.  See September 2018 VA examination, p. 4.  The April 2012 VA examination found that the Veteran's limitation of flexion was 0 to 130 degrees with pain starting at 115 degrees.  See April 2012 VA examination, pp. 14-15.  During the April 2012 VA examination, the Veteran reported pain, weakness, stiffness, fatigability, lack of endurance, arthritis, and that he was unsure to what extent flare-ups resulted in additional limitation of motion of functional impairment during flare-ups.  See April 2012 VA examination, p. 3.

Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees.  A 10 percent disability rating is warranted for flexion limited to 45 degrees.  A 20 percent disability rating is warranted for flexion limited to 30 degrees.  A 30 percent disability rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5010, to show that the left knee medial meniscal tear status post partial medial meniscectomy is being rated based on noncompensable limitation of motion that is painful.  For this reason, the Board is changing the Diagnostic Code for the left knee medial meniscal tear status post partial medial meniscectomy to 5010 to reflect the actual rating already assigned.  38 C.F.R. § 4.71a.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by x-ray findings are to be rated as arthritis, degenerative (Diagnostic Code 5003).

Degenerative arthritis is rated under Diagnostic Code 5003, which provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a.

In the absence of limitation of motion, a 10 percent disability rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent disability rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  In Notes (1) and (2) in Diagnostic Code 5003, it is indicated these 20 and 10 percent disability ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

For the above reasons, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee medial meniscal tear status post partial medial meniscectomy.  The Board acknowledges the Veteran's lay reports of symptoms and that there was pain during flare-ups while he slept.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had flare-ups of additional pain while sleeping with no reports of additional functional loss would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg (beyond the previously noted instability under Diagnostic Code 5257).  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

As noted above, and shall be discussed in greater detail below, the Veteran is also now separately rated for instability of his left knee under Diagnostic Code 5257.  However, the Board finds that separate disability ratings under to remaining Diagnostic Codes 5256 through 5263 are not applicable either due to pyramiding or because the Veteran's disabilities do not meet the criteria for the remaining Diagnostic Codes related to the knee.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee medial meniscal tear status post partial medial meniscectomy.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Instability from December 16, 2020

The Veteran's left knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee.  Under Diagnostic Code 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability.  A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent disability rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.

Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code.  See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left knee instability.  The Board has carefully considered the Veteran's reports about instability.  English, 30 Vet. App. 347, 352-53.  However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe severity.  The December 2020 VA examination found that the Veteran has moderate impairment (5-10 millimeters (mm) of medial instability and lateral instability) of the left knee.

The Board notes that instability was first shown in the December 16, 2020 VA examination.  Therefore, the Board finds that the increase in disability occurred after the claim was filed, and the appropriate effective date is the date that the increase is shown to have occurred (date entitlement arose).  38 C.F.R. § 3.400(o)(1).

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

The Board finds that separate disability ratings under the remaining Diagnostic Codes 5256 through 5263 are not applicable either due to pyramiding or because the Veteran's disabilities do not meet the criteria for the remaining Diagnostic Codes related to the knee.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left knee instability.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to an initial disability rating in excess of 10 percent prior to August 22, 2018 for lower back strain

5. Entitlement to a disability rating in excess of 20 percent from August 22, 2018 for lower back strain

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his service-connected low back strain.

The Veteran's lower back strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.

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; 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 criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

From February 26, 2013 through August 21, 2018

The Veteran was afforded a VA examination in February 2014.  The February 2014 VA examiner found that the Veteran's forward flexion was 0 to 90 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 30 degrees; left lateral flexion 0 to 30 degrees; right lateral rotation 0 to 30 degrees; and left lateral rotation 0 to 30 degrees with a combined range of motion of the thoracolumbar spine of 240 degrees.  The February 2014 VA examiner found that there was objective evidence of pain with right paralumbar spinous tenderness on palpation.  However, the examiner did not indicate that the Veteran had spasms, guarding, abnormal gait, abnormal spinal contour, nor vertebral body fracture with loss of 50 percent or more of the height.  Furthermore, the examiner found that the Veteran did not have loss of motion secondary to pain, weakness, or lack of endurance with repetition.

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lower back strain because he had localized tenderness not resulting in abnormal gait or abnormal spinal contour.  Additionally, the Board notes that the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See February 2014 VA Examination, p. 5.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for lower back strain.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

From August 22, 2018 to Present

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lower back strain.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has constant low back pain, worse with prolonged standing, walking, and sitting; would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

The Veteran was afforded a VA examination on September 11, 2018.  The September 2018 VA examiner found that the Veteran's forward flexion was 0 to 60 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 25 degrees; left lateral flexion 0 to 25 degrees; right lateral rotation 0 to 25 degrees; and left lateral rotation 0 to 25 degrees; with a combined range of motion of the thoracolumbar spine of 180 degrees.  The Board notes that the Veteran did not report flare-ups during the September 2018 VA examination.  See September 2018 VA examination, p. 3 (Question 2B).

As noted above, the Veteran was afforded a third VA examination in December 2020.  The December 2020 VA examiner found that the Veteran's forward flexion was 0 to 70 degrees; extension 0 to 15 degrees; right lateral flexion 0 to 20 degrees; left lateral flexion 0 to 15 degrees; right lateral rotation 0 to 30 degrees; and left lateral rotation 0 to 30 degrees; and a combined range of motion of the thoracolumbar spine of 180 degrees.  The December 2020 VA examiner found that pain, weakness, fatigability, or incoordination significantly limits functional ability during flare-ups but does not produce additional limitation on range of motion.  Furthermore, the Veteran does not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

The Board notes that from the December 16, 2020 VA examination, the Veteran no longer meets the criteria for a 20 percent disability rating (or higher) for lower back strain.  In contrast, the Veteran once again meets the criteria for a 10 percent disability rating because he has a forward flexion of 0 to 70 degrees (10 percent disability criteria is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees) with a combined range of motion of the thoracolumbar spine of 180 degrees (10 percent disability criteria is combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees).  However, the Board will not lower the Veteran's disability rating for his lower back strain but will advise the Veteran that the RO may reduce his disability rating.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes.  However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lower back strain.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

6. Entitlement to an initial disability rating in excess of 50 percent prior to December 8, 2014 for PTSD, also claimed as anxiety, depression, and sleep disturbances

7. Entitlement to a disability rating in excess of 70 percent from December 8, 2014 for PTSD, also claimed as anxiety, depression, and sleep disturbances

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his PTSD, also claimed as anxiety, depression, and sleep disturbances.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent disability rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent disability rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation).

A 50 percent disability rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent disability rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent disability rating is assigned 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; or memory loss for names of close relatives, own occupation or own name.

From February 26, 2013 through December 7, 2014

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher.

As a preliminary matter, the Board notes that the Veteran was initially awarded a 50 percent disability rating based upon the minimum evaluation for a mental disorder that develops in service as a result of a highly stressful event that was severe enough to bring about a discharge from active military service.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher.  The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent disability rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent disability rating.

The Veteran was afforded a VA examination in April 2012.  The April 2012 VA examination noted that the Veteran did not have total occupational and social impairment due to mental disorder signs and symptoms; nor deficiencies in judgment, thinking, family relations, work, mood, or school; nor reduced reliability and productivity due to mental disorders symptoms; nor occasional decrease in work efficiency nor intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms but with generally satisfactory functioning (routine behavior, self-care, and conversation).  However, the April 2012 VA examiner found that the Veteran had mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (indicating the criteria for a 10 percent disability rating).

VA treatment records, the February 2014 VA examination, and the Veteran's lay statements show that the Veteran's PTSD, also claimed as anxiety, depression, and sleep disturbances was manifested by symptoms associated with a 30 percent disability rating (depressed mood, anxiety, suspiciousness, and chronic sleep impairment); a 50 percent disability rating (disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships); symptoms associated with a 70 percent disability rating (suicidal ideation, difficulty in adapting to stressful circumstances (including work or a worklike setting)).  He also had symptoms that are not listed with a specific rating, such as feelings of worthlessness, re-experiencing avoidance, negative alterations in cognition and mood, and hyper-arousal symptoms. 

The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent disability rating.  See 38 C.F.R. § 4.126.  The Veteran reported that these symptoms were not present daily, but would increase in severity when he is not taking his antidepressants.  Further, feelings of worthlessness, re-experiencing avoidance, negative alterations in cognition and mood, and hyper-arousal symptoms are similar to depression, anxiety, and disturbances of mood, which are contemplated by the assigned 50 percent disability rating or lower.

While the Veteran did experience symptoms contemplated by a 70 percent disability rating suicidal ideation as recently as two months prior the February 2014 VA examination, difficulty in adapting to stressful circumstances (including work or a worklike setting); the evidence overall does not demonstrate the level of impairment associated with a 70 percent disability rating.  As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent disability rating or lower.

From December 8, 2014

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent.  The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent disability rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent disability rating. 

VA and private treatment records, the September 2018 VA examination, and the Veteran's lay statements show that the Veteran's PTSD, also claimed as anxiety, depression, and sleep disturbances was manifested by symptoms associated with a 30 percent disability rating (depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events); a 50 percent disability rating (disturbances of motivation and mood); symptoms associated with a 70 percent disability rating (suicidal ideation).

The Board notes that the Veteran submitted a private provider evaluation in December 2015 that was conducted in December 2014.  The Veteran's December 2014 private provider evaluation utilized GAF scores under the DSM-IV criteria.  However, effective August 4, 2014, 38 C.F.R. § 4.125 was amended to reflect that a diagnosis of a mental disorder must conform to the standards set in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  Before that date, the regulation required diagnosis to conform to the DSM-IV and that new examination requests from August 27, 2014 must be performed using DSM-5 criteria.  While the Veteran believes that he is entitled to a higher rating on the basis of Global Assessment of Functioning (GAF) scores, "[a]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness." Golden v. Shulkin, 29 Vet. App. 221, 225 (2018).  Therefore, the Board finds that the December 2014 private provider evaluation is inadequate because it does not conform to the DSM-5 criteria.  Despite the inadequate evaluation, the Board recognizes that the RO utilized this private provider evaluation as a basis for an increased evaluation to a 70 percent disability rating and the Board will not disturb the RO's disability rating effective date.

The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating.  The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the September 2018 VA examination.

The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent disability rating.  The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas.  Mental status examinations in VA treatment records and the September 2018 VA examination indicate that the Veteran reports that he has been doing well, casually dressed, pleasant, cooperative, alert, oriented x3, speech coherent and relevant with normal rate and tone, good eye contact, thoughts well organized, no delusions or hallucinations, mood euthymic with full range of affect and insight and judgment were not impaired.  During the October 2016, April 2017, January 2018 and February 2019 primary care appointment, the Veteran reported no anxiety, no depression, no suicidal ideation, and no homicidal ideation.  See October 26, 2016; April 26, 2017; January 25, 2018; and February 11, 2019 VA treatment records.  During the September 2018 VA examination, the Veteran reported that he is close to his children, his mother, and has friends from physical therapy, military, and church. 

While the Veteran did experience a single symptom contemplated by both the 70 percent and 100 percent disability ratings (suicidal ideation), the evidence overall does not demonstrate the level of impairment associated with a 100 percent disability rating.  As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent disability rating or lower. 

In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent disability rating, specifically total occupational and social impairment.  The criteria for a 100 percent or higher rating are not met and the appeal must be denied.

8. Entitlement to an initial disability rating in excess of 20 percent prior to March 4, 2014 for TMJ

9. Entitlement to a disability rating in excess of 10 percent from March 4, 2014 to December 15, 2020 for TMJ

10. Entitlement to a disability rating in excess of 40 percent from December 16, 2020 for TMJ

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran's TMJ is rated under the provisions of 38 C.F.R. § 4.150, Diagnostic Code 9905.  During the pendency of this appeal, the applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date.  See 82 Fed. Reg. 36080 (August 3, 2017).  The revision does not specify that it was to have a retroactive effect.  Accordingly, the Board will consider the pre-September 10, 2017 criteria and the revised criteria and apply the criteria most favorable to the Veteran.  However, if an award is warranted under the revised criteria, the award cannot be retroactively effective prior to September 10, 2017.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Prior to September 10, 2017, under Diagnostic Code 9905, for limited motion of temporomandibular articulation, provided a 20 percent disability rating for interincisal range of 21 to 30 mm, a 30 percent disability rating for interincisal range of 11 to 20 mm, and a maximum 40 percent disability rating for interincisal range of 0 to 10 mm.  38 C.F.R. § 4.150, Diagnostic Code 9905 (2016).  A Note provides that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion.

Since September 10, 2017, under Diagnostic Code 9905, for temporomandibular disorder, when the interincisal range is 30 to 34 mm of maximum unassisted vertical opening, a 20 percent disability rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 30 percent disability rating is assigned with dietary restrictions to full liquid and pureed foods.  When the interincisal range is 21 to 29 mm of maximum unassisted vertical opening, a 20 percent disability rating is assigned without dietary restrictions to mechanically altered foods; a 30 percent disability rating is assigned with dietary restrictions to soft and semi-sold foods; and a 40 percent disability rating is assigned with dietary restrictions to full liquid and pureed foods.  When the interincisal range is 11 to 20 mm of maximum unassisted vertical opening, a 30 percent disability rating is assigned without dietary restrictions to mechanically altered foods; and a 40 percent disability rating is assigned with dietary restrictions to all mechanically altered foods.  When the interincisal range is 0 to 10 mm of maximum unassisted vertical opening, a 40 percent disability rating is assigned without dietary restrictions to mechanically altered foods; and a 50 percent disability rating is assigned with dietary restrictions to all mechanically altered foods.  38 C.F.R. § 4.150, Diagnostic Code 9905.

Per Diagnostic Code 9905, Note (1) states disability ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion.  Note (2) states, for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm.  Note (3) states, for VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow; there are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods; and to warrant elevation based on mechanically altered foods, the use of texture-modified diets must  be recorded or verified by a physician.  38 C.F.R. § 4.150, Diagnostic Code 9905.

Prior to March 4, 2014

The Veteran was afforded a VA examination in May 2012.  The May 2012 VA examiner found that the Veteran had 30 mm inter-incisal range of motion.

Here, the Board finds that a disability rating in excess of 20 percent is not warranted based upon 30 mm inter-incisal range of motion.  In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of a disability rating in excess of 20 percent.  As such, a disability rating in excess of 20 percent is not warranted at any point during the appeal period, as the Veteran's inter-incisal range has never been limited to less than 21 mm nor required dietary restrictions to mechanically altered foods. 

From March 4, 2014 through December 15, 2020

The Veteran was afforded a VA examination in March 2014.  The March 2014 VA examiner found that the Veteran had 31 to 40 mm inter-incisal range of motion.

The Veteran was afforded a second VA examination in September 2018.  The September 2018 VA examiner found that the Veteran had greater than 34 mm inter-incisal range of motion.

As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted.  The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code.  Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code).

The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 9905 for temporomandibular disorder.  However, during this period on appeal (March 4, 2014 through December 15, 2020), the severity of the Veteran's disability improved to a non-compensable disability level.

Accordingly, the Veteran is currently being rated for limitation of range of motion for temporomandibular disorder.  However, as noted above, the March 2014 and September 2018 VA examination demonstrated that the Veteran had inter-incisal range of motion in excess of 31 mm nor required dietary restrictions to mechanically altered foods.

Therefore, the Board finds that a rating under Diagnostic Code 9905 is not the appropriate Diagnostic Code to rate the Veteran's disability.  The evidence does show limitation of motion due to pain.  As such, the Board finds that a rating under Diagnostic Code 5010 for arthritis due to trauma is the more appropriate Diagnostic Code.  Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 5010 for the period of March 4, 2014 through December 15, 2020.

Degenerative arthritis is rated under Diagnostic Code 5003, which provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a.

In the absence of (compensable) limitation of motion, a 10 percent disability rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2) in Diagnostic Code 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Therefore, the Board finds that a disability rating in excess of 10 percent is not warranted based upon an inter-incisal range of motion in excess of 30 mm throughout the period on appeal.  However, as noted above, because the Veteran has limitation of range of motion due to pain, a disability rating under Diagnostic Code 5010 is warranted.

In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of a disability rating in excess of the 10 percent disability rating.  As such, a disability rating in excess of 10 percent is not warranted at any point during the appeal period, as the Veteran's interincisal range has never been limited to greater than 31 mm nor required dietary restrictions to mechanically altered foods.

From December 16, 2020

The Veteran was afforded a VA examination in December 2020.  The December 2020 VA examiner found that the Veteran had inter-incisal distance of 0 to 10 mm without dietary restrictions.

As noted above, the Diagnostic Code for the Veteran's temporomandibular disorder was changed to 5010 only for the period of March 4, 2014 through December 15, 2020.  Therefore, for the period on appeal from December 16, 2020, the relevant Diagnostic Code remains 9905.

Here, the Board finds that a disability rating in excess of 40 percent is not warranted based upon inter-incisal distance of 0 to 10 mm without dietary restrictions.  In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of a disability rating in excess of 40 percent.  Under both the old and revised disability rating criteria, Diagnostic Code 9905 provides a 40 percent disability rating for interincisal range between 0 to 10 mm.  As such, a disability rating in excess of 40 percent is not warranted at any point during the appeal period, as the Veteran's interincisal range has never been limited to 0 to 10 mm with dietary restriction to mechanically altered foods.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

11. Entitlement to an initial disability rating in excess of 10 percent for tinnitus

The Veteran asserts that he is entitled to a higher disability rating for his service-connected tinnitus.

Recurrent tinnitus is evaluated under Diagnostic Code 6260, which provides for a maximum disability rating of 10 percent.  Diagnostic Code 6260, which was revised effective June 13, 2013 to clarify existing VA practice, also provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2.

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA's longstanding interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent disability rating for tinnitus, whether perceived as unilateral or bilateral.  Citing United States Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as the interpretation was not plainly erroneous or inconsistent with the regulations.  Smith, 451 F.3d at 1350-51.  Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that VA's interpretation of a single 10 percent disability rating being the maximum available for tinnitus was reasonable.

The Veteran was afforded a VA examination in December 2019.  The December 2019 VA examiner found that the Veteran does have a diagnosis of recurrent tinnitus.

The Veteran's tinnitus has been assigned the maximum schedular disability rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260, and a higher schedular rating or separate 10 percent disability rating for tinnitus of each ear are not warranted.

The Board has considered whether referral of the Veteran's claim for consideration of an extraschedular disability rating is warranted.  See 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular disability rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the disability rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to [the Director of the Compensation Service] to determine whether an extraschedular disability rating is warranted.

The Board finds that the first prong of the Thun analysis is not satisfied.  The Veteran's tinnitus is not shown (or alleged) to have manifestations or to cause impairment not encompassed by the schedular criteria.  His reports of ringing in the ears are the basis for a 10 percent disability rating for tinnitus.  He has not identified factors warranting referral for extraschedular consideration, such as marked interference with employment.  Furthermore, there is nothing exceptional or unusual about his tinnitus (masking is a commonly known ameliorative measure).  Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

12. Entitlement to an initial compensable disability rating of 10 percent for dry eye syndrome with recurrent corneal erosion

13. Entitlement to an initial disability rating in excess of 10 percent for dry eye syndrome with recurrent corneal erosion

The Veteran asserts that he is entitled to a higher disability rating for bilateral dry eye syndrome.

During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye.  83 Fed. Reg. 15316 (April 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.

The Board also notes that in the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009.  Specifically, prior to the May 2018 changes, the Note provided "For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider."  However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009.  Note: (1) provides "For the purposes of evaluation under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes.  Note: (2) provides "examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions."  Note: (3) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091.

As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted.  The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code.  Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code).

The Veteran's service-connected dry eye syndrome is currently evaluated as noncompensable under the provisions of 38 C.F.R. § 4.84a, Diagnostic Code 6099-6066.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen.  38 C.F.R. § 4.27.  Unlisted disabilities requiring rating by analogy are coded with the first two numbers of the schedule provisions most closely related body part and 99.  Here, the hyphenated diagnostic code indicates that the Veteran's bilateral eye disability is currently rated as analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for impairment of central visual acuity (Diagnostic Code 6066).  38 C.F.R. § 4.79, Diagnostic Code 6066.  The Board notes that this Diagnostic Code is limited to loss of visual acuity and does not take into account the Veteran's actual complaint and diagnosis related to dry eyes.

Accordingly, the Veteran is currently being rated for impairment of visual acuity.  However, the April 2012 and December 2019 VA examinations demonstrated that the Veteran did not have an impairment of visual acuity, but rather bilateral dry eye syndrome.

Therefore, the Board finds that a rating under Diagnostic Code 6099-6066 is not the appropriate Diagnostic Code to rate the Veteran's disability.  As will be addressed in greater detail below, the evidence does not show impairment of visual acuity at any point during the period on appeal nor incapacitating episodes.  In contrast, the evidence of record does show bilateral dry eye syndrome throughout the period on appeal.  As such, the Board finds that a rating under Diagnostic Code 6099-6018 for bilateral dry eye syndrome is the more appropriate Diagnostic Code.  Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6099-6018.

Furthermore, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection.  Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159.

Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. §§ 4.76(a), 4.79.  The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found.  38 C.F.R. § 4.76(b).  Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function.  Id.  Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated.  Id.

Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye.  38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009.  Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066.

Under the former criteria, the General Rating Formula for Diseases of the Eye, evaluation on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation.

The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged.  Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision.  38 C.F.R. §§ 4.76, 4.79.  Impairment of visual fields are rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents.  38 C.F.R. §§ 4.77, 4.79.  Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye.  38 C.F.R. §§ 4.78, 4.79.  

Impairment of central visual acuity is evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76. Visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology.  38 C.F.R. § 4.79, DCs 6061 to 6066.

A noncompensable disability rating is warranted for impairment of central visual acuity if corrected distance visual acuity is 20/40 or better in both eyes.

A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected distance visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected distance visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected distance visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected distance visual acuity is 20/50 in both eyes.  38 C.F.R. § 4.84a, DCs 6078, 6079; 38 C.F.R. § 4.79, DC 6066.

A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected distance visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected distance visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected distance visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected distance visual acuity of 20/70 in one eye and 20/50 in the other eye.  38 C.F.R. § 4.84a, DCs 6077, 6078; 38 C.F.R. § 4.79, DC 6066.

A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity in both eyes is 20/70; (2) corrected distance visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected distance visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected distance visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected distance visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected distance visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye.  38 C.F.R. § 4.84a, DCs 6070, 6074, 6076, 6077, 6078; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected distance visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected distance visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected distance visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye.  38 C.F.R. § 4.84a, DCs, 6066, 6070, 6073, 6076; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity is to 20/100 in both eyes; (2) corrected distance visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected distance visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively.  38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076, 6078; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected distance visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected distance visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected distance visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively.  38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected distance visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected distance visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected distance visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200.  38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 15/200 and the other eye is 15/200; (2) corrected distance visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected distance visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200.  38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 10/200 and the other eye is 10/200; (2) corrected distance visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200.  38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected distance visual acuity of one eye is to 5/200 and the other eye is 5/200; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes.  38 C.F.R. § 4.84a, DCs 6061, 6062, 6063, 6067, 6071; 38 C.F.R. § 4.79, DCs 6064 and 6065.

Examinations of visual acuity must include the central uncorrected and corrected distance visual acuity for distance and near vision using Snellen's test type or its equivalent.  38 C.F.R. § 4.76(a).  Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76(b).  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected distance visual acuity, whichever results in better combined visual acuity.  Id.

An April 2012 VA examination reveals that the Veteran had bilateral dry eye syndrome with no episodes of incapacitation.

04.30.2012	 

 	Uncorrected Distance	Corrected Distance	Uncorrected Near	Corrected Near

RIGHT	20/20	20/20	20/20	20/20

LEFT	20/20	20/20	20/20	20/20

The April 2012 VA examination also revealed that the Veteran did not have a documented visual field defect.

Based on the evidence above, a compensable disability rating for the Veteran's loss of visual acuity is not warranted.

The Veteran's visual acuity of 20/20 corrected and uncorrected distance bilaterally and 20/20 corrected and uncorrected near bilaterally warrants a noncompensable disability rating.

A December 2019 VA examination reveals that the Veteran bilateral dry eye syndrome with no episodes of incapacitation.

12.05.2019	 

 	Uncorrected Distance	Corrected Distance	Uncorrected Near	Corrected Near

RIGHT	20/20	20/20	20/20	20/20

LEFT	20/20	20/20	20/20	20/20

The December 2019 VA examination also revealed that the Veteran does not have a documented visual field defect.

Based on the evidence above, a compensable disability rating for the Veteran's loss of visual acuity is not warranted.

The Veteran's visual acuity of 20/20 corrected and uncorrected distance bilaterally and 20/20 corrected and uncorrected near bilaterally warrants a noncompensable disability rating.

Considering the medical evidence of record in light of the above-noted criteria, the Board finds that the criteria to support a compensable disability rating have not been under Diagnostic Code 6066 as there is no evidence of any loss of visual acuity in the Veteran's eyes that would correspond to a compensable disability rating under the VA rating schedule for visual impairment at any point throughout the period on appeal.  See 38 C.F.R. § 4.79.  However, as noted above, throughout the period on appeal, the Veteran's corrected distance visual acuity has maintained 20/20.  Treatment records do not show any change in the Veteran's vision and has been substantially better than the 20/50 and 20/40 best corrected vision necessary to support assignment of a 10 percent disability rating under Diagnostic Code 6066.

The Board notes that the only diagnosis for the Veteran has been bilateral dry eye syndrome and the Veteran is service connected for bilateral dry eye syndrome throughout the period on appeal.

The symptoms of chronic dryness and irritation of the eye are also symptoms of keratoconjunctivitis.  See Dorland's Illustrated Medical Dictionary, 28th Edition, p. 1077.  Given the great similarity of the symptomatology, the Board finds it appropriate to evaluate the symptoms of the Veteran's dry eye syndrome under Diagnostic Code 6018 for chronic conjunctivitis.  Diagnostic Code 6018 provides that chronic conjunctivitis that is active with objective symptoms shall be evaluated under the General Rating Formula for Diseases of the Eyes with a minimum disability rating of 10 percent.

The Board notes that although the Veteran does not have a visual impairment nor incapacitating episodes, the minimum evaluation of 10 percent disabling is appropriate, and no higher.  Therefore, the Board grants the Veteran's claim for an increased disability rating for bilateral dry eye syndrome with recurrent corneal erosion to 10 percent disabling, and no higher.

14. Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor

As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted.  The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code.  Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code).

The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 7820-7828 for acne.

Accordingly, the Veteran is currently being rated for acne that is rated for deep inflamed nodules and pus-filled cysts.  However, the April 2012 and November 2019 VA examinations demonstrated that the Veteran's tinea versicolor is multicolored patches located on his trunk and back.

Therefore, the Board finds that a rating under Diagnostic Code 7820-7828 is not the appropriate Diagnostic Code to rate the Veteran's disability.  The evidence does show the existence of acne, inflamed nodules, nor pus-filled cysts.  As such, the Board finds that a rating under Diagnostic Code 7806 for dermatitis or eczema is the more appropriate Diagnostic Code.  Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 7806.

Diagnostic Code 7806 provides that the Veteran's disability shall be evaluated under the General Rating Formula for the Skin.

The Veteran's tinea versicolor is currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806.  The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 13, 2008. See 83 Fed. Reg. 32,592 (July 13, 2018).  "VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied."  83 Fed. Reg. 32,592 (July 13, 2018). 

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." Diagnostic Code 7806 continues to apply to dermatitis or eczema but is rated under the general rating formula for the skin.

Under the former criteria, a 10 percent rating is warranted for at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating applies where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating applies where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 

Under the new criteria, a 10 percent disability rating is warranted where at least one of the following is present: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period.  A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period.  A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period.

With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806.  In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids.  The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied."  Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy.  The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.  In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects.

The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable.  However, the Federal Circuit's interpretation of the term "systemic therapy" in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively").

Turning to the evidence, the Veteran was afforded a VA examination in April 2012 that noted that the Veteran's tinea versicolor covered 0 percent of the Veteran's exposed body area and 8 percent of his total body area.

The Veteran was afforded a second VA examination in November 2019 that noted that the Veteran's tinea versicolor covered 0 percent of the Veteran's exposed body area and between 5 percent and less than 20 percent of his total body area with multicolor patches.  Furthermore, the examiner noted that the Veteran has not had any treatments or procedures including but not limited to systemic or tropical medications for any skin condition in the prior 12 months.

Because the Veteran's tinea versicolor affected at least five percent, but less than 20 percent, of the entire body; a 10 percent disability rating is warranted and no higher.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

15. Entitlement to an initial compensable disability rating for internal hemorrhoids

The Veteran asserts that he deserves a compensable disability rating for internal hemorrhoids.

The Veteran's hemorrhoids are rated pursuant to 38 C.F.R. § 4.113, Diagnostic Code 7336, for hemorrhoids, external or internal.  Pursuant to Diagnostic Code 7336, a noncompensable disability rating is warranted for mild or moderate disability; a 10 percent disability rating is warranted for large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  A 20 percent disability rating is warranted for persistent bleeding and with secondary anemia, or with fissures.

For the following reasons, the Veteran's hemorrhoids did not manifest in large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; nor persistent bleeding and with secondary anemia, or with fissures.

In April 2012, the Veteran was afforded a VA examination.  The April 2012 VA examiner found that Veteran reported monthly internal hemorrhoids with a small amount of blood in the stool.

In November 2019, the Veteran was afforded a second VA examination.  The November 2019 VA examiner found that the Veteran reported weekly flares with irritation of hemorrhoids worse with diarrhea with mild discomfort to the anus treated with Witch Hazel and diagnosed with mild or moderate external hemorrhoids with non-erythematous tissue protruding from the anus that is non-tender but palpable.

Accordingly, the Veteran's hemorrhoids did not manifest in two or more symptoms for the 30 percent evaluation of less severity.  

There is no reasonable doubt to be resolved.  The Veteran's hemorrhoid does not more nearly approximate the criteria corresponding to a compensable rating.  As the criteria for a 10 percent rating under Diagnostic Code 7336 are not met, a noncompensable rating is warranted.  See 38 C.F.R. § 4.114.

16. Entitlement to an initial compensable disability rating for GERD prior to November 25, 2019

17. Entitlement to a disability rating in excess of 10 percent for GERD from November 25, 2019

The Veteran asserts that he is entitled to a higher disability rating for GERD.

The Veteran's GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code 7346, for hiatal hernia.  Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 

Prior to November 25, 2019

For the following reasons, the Veteran's GERD did not manifest in two or more symptoms for the 30 percent evaluation of less severity.

The Veteran was diagnosed with GERD with no compensable symptoms.  The record does not reflect symptoms of persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; nor pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

Accordingly, the Veteran's GERD did not manifest in two or more symptoms for the 30 percent evaluation of less severity.

From November 25, 2019

For the reasons that follow, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity.

The Veteran was afforded a VA examination in November 2019.  The November 2019 VA examiner found that the Veteran's GERD was treated with Nexium with symptoms of reflux (Pyrosis) and regurgitation.

The Veteran is competent to report his readily observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran's credibility is not in question.

Accordingly, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under Diagnostic Code 7346.

A higher 30 percent rating under Diagnostic Code 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Thus, the Veteran's GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A higher 30 percent rating under Diagnostic Code 7346 is not warranted.

There is no reasonable doubt to be resolved.  The Veteran's GERD does not more nearly approximate the criteria corresponding to a compensable disability rating prior to November 25, 2019 and a disability rating in excess of 10 percent from November 25, 2019.  As the criteria for a compensable disability prior to November 25, 2019 and a disability rating in excess of 10 percent under Diagnostic Code 7346 are not met, an increased disability rating is warranted.  See 38 C.F.R. § 4.31.

18. Entitlement to an initial compensable disability rating for pseudofolliculitis barbae

The Veteran asserts that he is entitled to a higher disability rating for pseudofolliculitis barbae.

The Veteran's pseudofolliculitis barbae is evaluated under Diagnostic Code 7899-7828.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen.  38 C.F.R. § 4.27.  Unlisted disabilities requiring rating by analogy are coded with the first two numbers of the schedule provisions most closely related body part and 99.  Here, the hyphenated diagnostic code indicates that the Veteran's pseudofolliculitis barbae disability is currently rated as analogous to a Skin disability (Diagnostic Code 7899) under the Acne (Diagnostic Code 7828).  38 C.F.R. § 4.119, Diagnostic Code 7828.

During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address Diseases of the Skin.  83 Fed. Reg. 32664 (July 13, 2018) codified at 38 C.F.R. § 4.118, Diagnostic Code 7800 et seq. (August 30, 2002).  The final rule went into effect August 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.

Under both the former and revised criteria, a noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts) of any extent; a 10 percent disability rating is warranted where there is deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck.  A 30 percent disability rating, the highest available under the schedule, is warranted where there is deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck.  Under this Diagnostic Code, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 

Turning to the evidence, the Veteran was afforded a VA examination in April 2012 that noted that the Veteran's pseudofolliculitis barbae covered 1 percent of the Veteran's body area.

The Veteran was afforded a second VA examination in November 2019.  The November 2019 VA examiner found that the Veteran's pseudofolliculitis barbae covered less than 5 percent of the Veteran's exposed body area and less than 5 percent of the Veteran's total body area with eruption of raised lesions to the neck with raised erythematous lesions.

The Board finds that the preponderance of the evidence of the evidence is against the assignment of a compensable disability rating for pseudofolliculitis barbae under Diagnostic Code 7828 because the Veteran's disability does not more approximate deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face or neck.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

19. Entitlement to an initial disability rating in excess of 10 percent from February 26, 2013 through April 9, 2019 for right prepatellar bursitis, status post bursectomy

20. Entitlement to a disability rating in excess of 10 percent from June 1, 2019 for right prepatellar bursitis, status post bursectomy

21. Entitlement to an initial disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from April 1, 2013 through June 27, 2013

22. Entitlement to a disability rating in excess of 30 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from September 1, 2013 through September 30, 2018

23. Entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from October 1, 2018 through January 10, 2019

24. Entitlement to a disability rating in excess of 20 percent for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty from March 1, 2019

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.  

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.

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In the present case, the appellant has withdrawn his claims for entitlement to an increased disability rating for right prepatellar bursitis, status post bursectomy and entitlement to an increased disability rating for right shoulder glenohumeral osteoarthritis status post arthroscopy, subacromial decompression, sub pectoral biceps tenodesis and acromioplasty' and, hence, there remain no allegations of errors of fact or law for appellate consideration because he accidently filed for the increases of these two disabilities.  See Report of General Information (May 23, 2019) (VA Form 27-0820).

Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Deemer, 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.