Citation Nr: 21029556
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 16-19 717A
DATE: May 13, 2021

ORDER

Restoration of a 20 percent rating for lumbar-sacral strain, effective March 1, 2016, is granted.

Restoration of a 10 percent rating for gastroesophageal reflux disease (GERD) effective March 1, 2016, is granted.

Entitlement to an increased rating in excess of 50 percent for migraine headaches is denied.

Entitlement to an increased rating in excess of 20 percent for a lumbar-sacral strain is denied.

Entitlement to an increased rating in excess of 10 percent for a right knee patellofemoral syndrome is denied.

Entitlement to an increased rating in excess of 10 percent for a left ankle sprain is denied.

Entitlement to an increased rating in excess of 10 percent for a right ankle sprain is denied.

Entitlement to an increased rating in excess of 10 percent for GERD is denied.

Entitlement to a compensable rating for allergic rhinitis is denied.

REMANDED

Entitlement to an initial rating in excess of 50 percent prior to May 22, 2012 and in excess of 70 percent thereafter for major depressive disorder is remanded.

Entitlement to a compensable rating for tinea versicolor is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. A rating decision proposing to reduce the 20 percent rating assigned for the lumbar-sacral strain and the 10 percent rating assigned for GERD was issued in September 2014; the accompanying notice informed the Veteran of the 60-day period for the submission of evidence and of the right to request a predetermination hearing within 30 days.

2. On December 10, 2015, the Veteran was notified of the rating decision implementing the final reduction of the lumbar-sacral strain rating from 20 percent to 10 percent and the GERD rating from 10 percent to a noncompensable rating, both effective March 1, 2016.

3. The evidence of record does not establish an improvement in the disability level associated with either the lumbar-sacral strain or GERD.

4. Throughout the period on appeal, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability,

5. Throughout the period on appeal, the Veteran's lumbar-sacral strain has been manifested by painful motion, flare-ups, and limitation of flexion between 30 degrees and 60 degrees; but not by flexion limited to 30 degrees or less, ankylosis, loss or use, or IVDS .

6. Throughout the period on appeal, the Veteran's right knee patellofemoral syndrome has been manifested by pain, flexion limited to 130 degrees at worst, and limitations on walking, standing and bending; but not by flexion limited to 30 degrees or less, limitation of extension, instability, dislocated or removed semilunar cartilage, or ankylosis.

7. Throughout the period on appeal, the Veteran's left ankle sprain has been manifested by pain on motion, limitations on walking, standing lifting and bending and flare-ups, resulting in moderate limitation of motion.

8. Throughout the period on appeal, the Veteran's right ankle sprain has been manifested by pain on motion, limitations on walking, standing lifting and bending and flare-ups, resulting in moderate limitation of motion.

9. Throughout the period on appeal, the Veteran's GERD has been manifested by epigastric distress, pyrosis, and regurgitation; but not by impairment of health to any degree.

10. Throughout the period on appeal, the Veteran's allergic rhinitis has been manifested by nasal congestion and sneezing, but not by 50 percent obstruction of both nasal passages, complete obstruction of one passaged, or polyps.

CONCLUSIONS OF LAW

1. The reduction in the rating for a lumbar-sacral strain from 20 percent to 10 percent effective March 1, 2016, was improper, and restoration of the 20 percent rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.2, 4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

2. The reduction in the rating for GERD from 10 percent to a noncompensable rating effective March 1, 2016, was improper, and restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.2, 4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7346.

3. The criteria for an increased rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100.

4. The criteria for an increased rating in excess of 20 percent for a lumbar-sacral strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

5. The criteria for an increased rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

6. The criteria for an increased rating in excess of 10 percent for a left ankle sprain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

7. The criteria for an increased rating in excess of 10 percent for a right ankle sprain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

8. The criteria for an increased rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346.

9. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2009 to January 2011.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in a September 2011 rating decision the Veteran was granted service connection for major depressive disorder at 50 percent, headaches at 50 percent, a lumbar-sacral strain (hereinafter "low back disability") at 20 percent, right knee patellofemoral syndrome (hereinafter "right knee disability") at 10 percent, a left ankle sprain at 10 percent, GERD at 10 percent, and a right ankle sprain, allergic rhinitis and tinea versicolor ("skin disability") at a noncompensable level. A decision on entitlement to a TDIU was deferred, and entitlement to a TDIU was later denied in an October 2011 rating decision. 

The Veteran did not file a formal appeal of the ratings assigned for the disabilities in the September 2011 rating decision. 38 C.F.R. §§ 20.200, 20.201, 20.302 (2011). Further, no evidence pertaining to the severity of the headaches, low back disability, right knee disability, left or right ankle sprains, GERD, rhinitis, or skin disability was associated with the file within the one year following the September 2011 decision. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). As such, the September 2011 decision as to those issues is final. 38 C.F.R. § 20.1103. However, in May 2012 the Veteran filed a formal claim for TDIU, stating that his depressive disorder rendered him unemployable. 38 C.F.R. § 3.156(b). Thus, those two claims remained pending.

In a September 2012 rating decision, the RO again denied entitlement to an increased rating for depressive disorder and entitlement to a TDIU. The Veteran again did not file a formal appeal of that decision. 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). However, a new VA psychiatric examination was associated with the file in April 2013, and therefore the claims again remained pending despite the September 2012 decision. 38 C.F.R. § 3.156(b). The RO issued another rating decision in June 2013 which continued the 50 percent rating for major depressive disorder and denied entitlement to a TDIU. In December 2013, the Veteran filed a notice of disagreement as to the denials of an increased rating for major depressive disorder and entitlement to a TDIU. 38 C.F.R. §§ 20.201, 20.302 (2013).

In February 2014, the Veteran filed another formal claim for a TDIU, asserting that he was unemployable due to multiple service-connected disabilities. The RO accepted this as a claim for a TDIU, as well as a claim for increased ratings for the migraine headaches, low back disability, right knee disability, left and right ankle sprains, GERD, allergic rhinitis, and skin disability. In September 2014, the RO issued a rating decision which denied increased ratings for the skin disability, right ankle sprain, and rhinitis. The decision further proposed to reduce the ratings for the headaches from 50 percent to 10 percent, the low back disability from 20 percent to 10 percent, GERD from 10 percent to noncompensable, the right knee disability from 10 percent to noncompensable, the left ankle sprain from 10 percent to noncompensable, and GERD from 10 percent to noncompensable. 38 C.F.R. § 3.105(e). In September 2015, the Veteran filed a notice of disagreement with the denials of increased ratings for the right ankle sprain, rhinitis and the skin disability. 38 C.F.R. §§ 20.201, 20.302 (2015).

In December 2015, the RO issued another rating decision implementing the proposed reductions, thereby reducing the headaches from 50 percent to 10 percent, low back disability from 20 percent to 10 percent and GERD, the left ankle sprain and right knee disability from 10 percent to noncompensable, all effective March 1, 2016. In May 2016, the Veteran filed a notice of disagreement with the ratings assigned for the headaches, low back disability, right knee disability, left ankle sprain, and GERD. 38 C.F.R. §§ 20.201, 20.302 (2016).

In March 2016, the RO issued a statement of the case denying an increased rating for depressive disorder and entitlement to a TDIU. In May 2016, the Veteran filed a statement disagreeing with the rating assigned for the major depressive disorder on a standard notice of disagreement form. While not filed on a standard substantive appeal form, the filing still contained all of the necessary information to constitute a substantive appeal and was accepted as such. 38 C.F.R. § 20.202 (2016).

In May 2018, the RO issued a statement of the case denying increased ratings for headaches, GERD, a left ankle sprain, a right knee disability and a low back disability. As part of the discussion of entitlement to increased ratings, the RO also addressed the propriety of the reductions. In June 2018 the RO issued another statement of the case denying entitlement to an increased rating for a right ankle sprain, a skin disability and rhinitis. In July 2018 the Veteran filed a substantive appeal disagreeing with all issues listed in any statement of the case. As this was filed within the appellate period for both the May 2018 and June 2018 statements of the case, it perfected an appeal to the Board of all issues decided in both documents. 38 C.F.R. § 20.302 (2018). All of the issues were then combined into a single appeal for the purposes of Board review.

The Board remanded the issues on appeal for additional development in February 2020. Records from the Social Security Administration (SSA) were obtained in September 2020, and the requested examinations were obtained in February 2021. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also reversed the reduction in the rating for the Veteran's headaches, reinstating a 50 percent rating effective March 1, 2016, and granted service connection for asthma. As such, those issues are no longer before the Board. Ab v. Brown, 6 Vet. App. 35 (1993).

During the course of the above, in a March 2016 rating decision the RO granted a staged increased rating of 70 percent for the major depressive disorder, effective May 22, 2012. Then, in a June 2018 rating decision the RO reversed the reductions of the right knee disability and left ankle sprain, reinstating 10 percent ratings for each effective March 1, 2016. In that same decision the RO granted a staged increased rating of 20 percent for the low back disability effective April 2, 2018. Finally, in a March 2021 rating decision the RO awarded a 10 percent rating for the right ankle sprain effective February 7, 2014, thereby assigning a 10 percent rating for that disability for the entire period on appeal. As the reversal of the reductions constitutes a full grant of the benefits sought, the Board need not address the propriety of the right knee disability and left ankle sprain reductions herein. Id. However, as the other rating actions do not constitute full grants of the benefits sought, the issues are still on appeal. Id. The issues have been recharacterized to reflect the increased ratings assigned in each decision, and the dates of any staged increased ratings as appropriate. 

As noted above, the Veteran appealed from the rating decision in which the RO reduced the ratings for his headaches, low back disability, left ankle disability, right knee disability and GERD. Accordingly, the first issue on appeal is whether the December 2015 reductions of the low back disability and GERD ratings, the only reductions still in effect, were proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 27980 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). However, as the current appeals stem from a claim for an increased rating, and the Veteran has generally contested that increased ratings are warranted, the Board finds that claims for increased ratings for the headaches, low back disability, left ankle disability, right knee disability and GERD are also properly before the Board.

In his July 2018 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ). In subsequent May 2019 correspondence, the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.603 (2020).

Finally, in September 2020 correspondence received while the appeal was on remand at the RO the Veteran's representative withdrew as the representative of record. 38 C.F.R. § 20.6 (2020). To date, the Veteran has not submitted a new power of attorney form in favor of a new representative. As such, the Veteran is pro se in this matter. 

Rating Reductions

In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 42021 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13).

In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421.

1. Propriety of the rating reductions for the low back disability and GERD.

As an initial matter, since the facts and analysis applicable to the reductions for both the low back disability and GERD are substantially the same, the Board will address both reductions together for the purposes of brevity.

The Veteran filed a claim for service connection for a low back disability and GERD in June 2011. At that time VA obtained examinations concerning the disabilities in August 2011. The lumbar spine examiner noted that the Veteran was capable of forward flexion to 60 degrees with pain starting at 60 degrees, extension to 10 degrees with pain at 10 degrees, left and right lateral flexion to 30 degrees with pain at 20 degrees, and left and right lateral rotation to 30 degrees with pain at 20 degrees. There was no evidence of further loss of motion with repetitive testing, but the examiner noted increased pain with repeated motion on lateral flexion and lateral rotation. The examiner noted severe guarding, antalgic gait, and mild dextrascoliosis.

With respect to GERD, the examiner noted that the Veteran reported pyrosis, substernal pain, reflux, regurgitation, and nausea. The examiner then noted that the Veteran denied radiating substernal pain, hematemesis, melena, and vomiting. Finally, the examiner stated that the Veteran appeared healthy, with no evidence of anemia or debilitation.

Based on these examinations, in a September 2011 rating decision the RO granted service connection for the low back disability and GERD. The RO then assigned a 20 percent rating for the low back disability, based on limitation of forward flexion to 60 degrees, and a 10 percent rating for GERD, based on the presence of two or more of the following symptoms: epigastric distress, dysphagia, pyrosis, regurgitation, or substernal or arm or shoulder pain. Both ratings were effective January 15, 2011.

Subsequently, the Veteran filed a formal claim for a TDIU in February 2014, which was also accepted, in pertinent part, as a claim for increased ratings for the low back disability and GERD. VA obtained examinations concerning the low back disability and GERD in September 2014. 

Concerning the low back disability, the examiner noted that the Veteran had forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and left and right lateral rotation to 20 degrees. There was no evidence of pain on motion, and no further loss of range of motion with repetitive testing. The examiner noted that the Veteran reported flares-ups lasting 20 to 30 minutes requiring him to rest. As to GERD, the September 2014 examiner noted that the Veteran reported mild heartburn and reflux symptoms. The examiner further noted no loss of weight, good appetite, and no pain or dysphagia. The examiner noted symptoms of pyrosis and reflux.

Based on these examination reports, the RO proposed to reduce the Veteran's rating for the low back disability from 20 percent to 10 percent and the rating for GERD from 10 percent to noncompensable. This proposed reduction was made final in a December 2015 rating decision, effective March 1, 2016. 

Following the reduction, additional low back and GERD examinations were obtained in April 2018. As to the low back disability, the examiner noted the Veteran reported flare-ups of the disability two times per year lasting approximately one hour during which it was difficult to walk. The Veteran was noted to have flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. Pain was present in all planes and on weightbearing. Pain and tenderness were present, but there was no evidence of ankylosis. There was no pain in non-weightbearing. The examiner stated that testing for pain on passive range of motion was not possible as it could not be conducted in a safe manner. Concerning GERD, the examiner noted that the Veteran reported heartburn when eating spicy food. The examiner then noted symptoms of infrequent episodes of epigastric distress, pyrosis, and reflux.

Based on the foregoing, the evidence does not reflect objective improvement in the Veteran's low back or GERD symptoms. Dofflemyer, 2 Vet. App. 277. While it is uncontroverted that the September 2014 examination reports reflect that the Veteran's low back range of motion and GERD symptoms had improved, pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the April 2018 low back and GERD examinations reflect findings that are consistent with those contained in the August 2011 examinations. Further, the findings contained in the April 2018 examinations reflect that the Veteran met the criteria for a 20 percent rating for the low back disability and a 10 percent rating for GERD. 38 C.F.R. § 4.71a, Diagnostic Code 5237, 4.114, Diagnostic Code 7346. 

In light of the foregoing, the Board finds that the reductions in rating for a low back disability from 20 percent to 10 percent and GERD from 10 percent to noncompensable were improper, and a restoration of the prior 20 percent rating for the low back disability and 10 percent rating for GERD, effective March 1, 2016, is warranted. Id.; 38 C.F.R. §§ 4.2, 4.10.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

2. Entitlement to an increased rating for headaches.

The Veteran's headaches are rated under Diagnostic Code 8100. Under Diagnostic Code 8100, a 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. 

The rating criteria contained in Diagnostic Code 8100 are successive. Johnson v. Wilkie, 30 Vet. App. 245, 24954 (2018). "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Id.; see Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008).

"Frequent" is defined as common or usual, or happening at short intervals, often repeated or occurring. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 500 (11 ed. 2003). "Very" means to a high or great degree. Id. at 1391; THE MERRIAM-WEBSTER THESAURUS 1117 (2005). Synonyms for "very" include especially, exceedingly, extremely, and particularly. THE MERRIAM-WEBSTER THESAURUS 1117 (2005). Thus, headaches which are "very frequent" in nature are headaches which occur at particularly or especially short or common intervals.

Neither the rating criteria nor the Court has defined the term "prostrating." The term "prostrate," which includes "prostrating," is defined as "to reduce to submission, helplessness, or exhaustion." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 998 (11 ed. 2003). A very similar definition is found in Dorland's Illustrated Medical Dictionary, in which "prostration" is defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (32d ed. 2012).

"Inadaptability" is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id.

The Board notes that the Veteran has submitted a June 2019 statement concerning the severity of his headaches, attesting to the fact that his headaches occur several times per week and require him to lay down and rest. Several VA examinations during the period on appeal are also of record. However, the Veteran is currently assigned a 50 percent rating for his migraine headaches throughout the period on appeal, which is the maximum allowable rating under Diagnostic Code 8100. Therefore, an increased rating is not possible under that Diagnostic Code at any point during the period on appeal. 

The Veteran has only been diagnosed with migraine headaches during the period on appeal, which are specifically covered by Diagnostic Code 8100. As such, it would be inappropriate to rate by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) (stating that when a condition is specifically listed in the schedule, it may not be rated by analogy). Thus, consideration of any alternative Diagnostic Codes, and any potentially higher ratings associated with alternative Diagnostic Codes, is not warranted.

The Board notes that during the period at issue the evidence of record has reflected a wide-variety of symptoms, including pain, photophobia and sensitivity to sound. However, these symptoms are contemplated by the currently assigned rating of 50 percent, as the rating criteria for migraine headaches are based on the frequency of the headaches and whether the headache, and its associated symptoms, results in prostration. Holmes v. Wilkie, 33 Vet. App. 67 (2020). Thus, Diagnostic Code 8100 inherently considers all symptoms associated with a headache disability, in that it focuses only on the frequency of any and all symptoms and whether those symptoms result in prostration. Id. As all of the Veteran's symptoms are contemplated by the assigned ratings, referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018).

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against an increased rating in excess of 50 percent for the Veteran's service-connected headaches. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

2. Entitlement to an increased rating for a low back disability.

As an initial matter, the Board notes that the rating criteria for musculoskeletal disabilities were amended on February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, the amendment did not alter the diagnostic criteria associated with the Veteran's currently assigned Diagnostic Code. As such, in adjudicating this specific issue the Board will not address the February 2021 amendment further. 

The Veteran's low back disability is rated under Diagnostic Code 5237. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id.

Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Effective February 7, 2021, Diagnostic Code 5243 may only be assigned when there is a disc herniation with compression and / or irritation of the adjacent nerve root. 85 Fed. Reg. at 76,462.

During the period on appeal, the Veteran has generally alleged that his low back disability is worse than currently rated. However, the Veteran has not submitted any lay statements described the symptoms associated with his low back disability. As such, the issue must be decided based on the medical evidence of record.

The Veteran was provided with VA examinations in September 2014, April 2018, and February 2021. In September 2014, the Veteran reported episodes of back pain once or twice a week, and reported flares-ups lasting 20 to 30 minutes requiring him to rest. On examination the Veteran had forward flexion to 70 degrees with no evidence of pain on motion and no further loss of range of motion with repetitive testing. There was no evidence or radiculopathy or any other associated neurologic manifestations. The examiner specifically stated that the Veteran did not have ankylosis of the spine or IVDS. Finally, the examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups or after repeated use over time, and opined that there would be no further loss of range of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017).

In April 2018, the Veteran reported constant low back pain. He also reported flare-ups of the disability two times per year lasting approximately one hour during which it was difficult to walk. The Veteran was noted to have flexion to 40 degrees, with pain present on active motion and on weightbearing. There was no pain with non-weightbearing, and the examiner stated that testing for pain on passive range of motion was not possible as it could not be conducted in a safe manner. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). No further loss of motion was present after repetitive testing. The examiner noted that there was no evidence of radiculopathy or other associated neurologic abnormalities, and that ankylosis, loss of use and IVDS were not present.

Finally, in February 2021 the Veteran reported pain and difficulty bending, lifting, and walking. The Veteran denied flare-ups of the disability and denied any radiating pain. The examiner noted that the Veteran was capable of forward flexion to 65 degrees and extension to 20 degrees, with evidence of pain on motion. Pain was present on passive motion, but not on weightbearing or non-weightbearing. Id. The examiner noted that there was no evidence of additional loss of motion after repeated testing, but estimated that the Veteran would be limited to 60 degrees of forward flexion and 15 degrees of extension during a flare-up. Sharp, 29 Vet. App. at 3436. The examiner noted that there was no ankylosis, radiculopathy or other associated neurologic impairments, IVDS, or loss of use.

There is no evidence that the above examiners were either not competent or credible. Further, each examiner based their assessment of the severity of the Veteran's disability on both the Veteran's reports of his symptoms and limitations as well as the results of an objective spine examination. Therefore, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Board notes that the September 2014 examination did not conduct the required testing for pain, and further that the April 2018 report did not include an estimate of range of motion loss during flare-ups. However, these omissions do not render the other findings in the examination report inaccurate or unreliable, and therefore the Board may otherwise rely on the measurements and assessments recorded in each report. Further, the necessary testing for pain was conducted in the April 2018 and February 2021 examinations, and the September 2014 and February 2021 examiners provided estimates concerning range of motion loss during flare-ups. As such, the Board finds that there is sufficient evidence in the file to appropriately rate the Veteran's spine disability. 

Treatment records reflect on-going treatment for low back pain, muscle spasms, and limitation of motion, but contain no further range of motion testing. None of the records note that the Veteran has ankylosis of the spine or any of the symptoms associated with unfavorable ankylosis. Neurologic assessments contained in the Veteran's treatment records are consistently negative. An August 2016 physical therapy record specifically noted that the Veteran was negative for radiculopathy in either lower extremity, and a February 2018 neurology consultation note also stated that based on examination and testing there was no evidence suggesting radiculopathy in the lower extremities.

Records from the SSA also reflect complaints of low back pain, limitation of motion, difficulty lifting, and limitations on walking and standing. A March 2014 physical examination conducted in conjunction with the Veteran's claim for SSA disability benefits noted that the Veteran was capable of forward flexion to 60 or 65 degrees, with no evidence of neurologic deficits.

Based on the foregoing, the preponderance of the evidence is against a finding that a rating in excess of 20 percent for the low back disability is warranted. All of the medical evidence throughout the period on appeal reflects that the Veteran has been capable of forward flexion in excess of 30 degrees. None of the medical evidence reflects that the Veteran's lumbar or entire spine is fixed in place in any way, or that the Veteran has any symptoms associated with or indicative of unfavorable ankylosis of the spine. 

In evaluating the Veteran's current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, all of the VA examiners have noted that there was no evidence of additional range of motion loss after repetitive testing, which is specifically designed to elicit further limitation due to factors such as pain, weakness and fatiguability. Further, the September 2014 examiner estimated that the Veteran would not have any further loss of motion during a flare-up, and the February 2021 VA examiner estimated that during the reported flare-ups during the appellate period the Veteran likely would lose and additional 5 degrees of flexion and extension. As such, even if the Board were to apply the February 2021 examiner's more advantageous estimate to the worst measurements of record, at worst the Veteran had forward flexion to 35 degrees during flare-ups which is still in excess of the severity of limitation contemplated by a 40 percent rating. 

Likewise, even when considering the estimates concerning additional range of motion loss during flare-ups, and particularly that provided by the February 2021 VA examiner, the evidence of record throughout the period on appeal reflects that the Veteran was still capable of a substantial degree of motion in all planes. Therefore, the Veteran does not have the functional equivalent of ankylosis due to pain, weakness, fatiguability or other factors or during flare-ups. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021).

In addition, in April 2018 the Veteran reported flare-ups occurring one to two times per year and lasting approximately one hour. Therefore, even if the Veteran's limitation of motion during flare-ups resulted in limitation of flexion to 30 degrees of less or the functional equivalent of ankylosis, the extremely infrequent nature of the flare-ups means that they are not representative of the Veteran's normal level of disability. Thus, the assignment of an increased rating for the low back disability based solely on the severity of the Veteran's flare-ups would not be appropriate. Based on the foregoing, the Board finds that an increased rating in excess of 20 percent for the Veteran's low back disability is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237.

No additional higher or alternative ratings under different Diagnostic Codes can be applied. Each VA examiner noted that the Veteran does not have IVDS, and there is no evidence in any of the treatment or SSA records indicating that the Veteran has IVDS. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. As such, an increased rating based on incapacitating episodes is not appropriate. Id.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. In this case all of the VA examiners noted that the Veteran did not have radiculopathy, or any other neurologic abnormalities, associated with his low back disability. This finding was echoed in the March 2014 SSA physical examination, the April 2016 VA physical therapy note, and the February 2018 neurology note. As such, additional compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor the record have raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against an increased rating in excess of 20 percent for the Veteran's low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

3. Entitlement to an increased rating for a right knee disability.

As an initial matter, the Board notes that the rating criteria for musculoskeletal disabilities were amended on February 7, 2021. 85 Fed. Reg. 76,453. The amendment did not alter the diagnostic criteria associated with the Diagnostic Code governing the Veteran's right knee disability. However, the amendment did alter the rating criteria contained in other potentially applicable Diagnostic Codes. As such, in considering other potentially applicable ratings, the Board will consider whether separate compensable ratings are warranted under the prior criteria, as well as the new criteria. However, any additional ratings assigned under the amended criteria may only be effective as of the date of the amendment. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The Veteran's right knee disability is rated under Diagnostic Code 5260. Diagnostic Code 5260 provides for the assignment of a 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Id. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II.

During the period on appeal, the Veteran has generally alleged that his right knee disability is worse than reflected by his currently assigned rating. However, the Veteran has not submitted any lay statements describing the symptoms associated with his knee disability. As such, the issue must be decided based on the medical evidence of record.

The Veteran was provided with VA examinations in April 2013, September 2014, April 2018, February 2021. During the April 2013 examination, the Veteran reported right knee pain but denied any flare-ups. The examiner noted that the Veteran had flexion to 140 degrees or more and extension to 0 degrees. There was no evidence of pain on motion, and no further loss of range of motion with repeat testing. Anterior, posterior and medial-lateral stability were normal, and the examiner noted that there was no evidence of patellar subluxation or dislocation, meniscal conditions, joint replacements, or loss of use. 

In September 2014, the Veteran reported pain and flare-ups that limit motion of the knee. The examiner noted that the Veteran had flexion to 140 degrees and extension to 0 degrees, with no evidence of pain on motion. There was no further loss of motion with repeated testing. Anterior, posterior, and medial-lateral stability were all normal. The examiner stated that there was no evidence of subluxation, dislocation, meniscal problems, joint replacement, or loss of use. In conclusion, the examiner stated that function of the knee was not further limited by flare-ups or use over time, and then further specifically estimated that there would be no further range of motion loss during flare-ups. Sharp, 29 Vet. App. at 3436.

In April 2018 the Veteran reported cracking, locking, and pain with climbing stairs and bending. The Veteran further reported flare-ups of the disability manifested by increased pain occurring twice a week and lasting one hour. The Veteran was noted to have flexion to 130 degrees and extension to 0 degrees. Pain was present on active motion, passive motion and non-weightbearing, but was not present on weightbearing. Correia, 28 Vet. App. at 168. There was no further loss of range of motion after repetitive testing. Anterior, posterior, medial, and lateral stability were all normal, and the examiner stated there was no evidence of patellar subluxation or dislocation, meniscal conditions, joint replacements, or loss of use. 

Finally, in February 2021 the Veteran reported pain on motion and difficulty lifting and bending. The Veteran denied flare-ups, effusion, and instability of the knee. The Veteran was found to have flexion to 140 degrees and extension to 0 degrees. Pain was present on active and passive motion but not on weightbearing or non-weightbearing. Id. There was no further loss of motion with repetitive testing, and the examiner estimated that during a flare-up the Veteran would have no further loss of motion. Sharp, 29 Vet. App. at 3436. The examiner noted that there was no evidence of subluxation or persistent instability, a history of a ligament tear, or that the Veteran had been prescribed an assistive device. Finally, the examiner stated that there was no evidence of ankylosis, patellar dislocation, meniscal conditions, joint replacement, or loss of use.

There is no evidence the above examiners were either not competent or credible. In addition, each examiner based their assessment of the severity of the Veteran's disability on both the Veteran's own account of his symptoms as well as their own objective examinations of the joint. Therefore, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

The Board notes that the April 2013 and September 2014 examinations did not conduct the required testing for pain, and further that the April 2018 report did not include an estimate of range of motion loss during flare-ups. However, these omissions do not render the other findings in the examination reports inaccurate or unreliable, and therefore the Board may otherwise rely on the measurements and assessments recorded in each report. Further, the necessary testing for pain was conducted in the April 2018 and February 2021 examinations, and both the September 2014 and February 2021 examiners provided estimates concerning range of motion loss during flare-ups. As such, the Board finds that there is sufficient evidence in the file to appropriately rate the right knee disability.

Treatment records reflect on-going reports of and treatment for knee pain, but no further range of motion testing is of record. A March 2014 SSA disability assessment reflects that the Veteran was capable of flexion to 145 degrees out of a possible 150 degrees, and was capable of extension to 0 degrees.

Based on the objective medical evidence, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted for the Veteran's right knee disability. The medical evidence of record shows that at worst the Veteran was capable of flexion of the knee to 130 degrees, which is well in excess of the severity of limitation contemplated by higher ratings for limitation of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. For the purposes of Diagnostic Code 5256, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). All four VA examiners noted that the Veteran does not have ankylosis. Further, as the Veteran is able to move his right knee, it is clearly not ankylosed. The Veteran was consistently noted to have extension to 0 degrees throughout the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5261. None of the medical evidence reflects that the Veteran was diagnosed with any meniscal conditions of the right knee during the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Further, each examiner noted that the Veteran had normal stability of the right knee, and the Veteran specifically denied any instability during the February 2021 VA examination. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). There is no medical or lay evidence of nonunion or malunion of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263 (2019). Finally, there is no medical evidence that the Veteran has shin splints, persistent instability, partial or complete ligament tears in the right knee, or patellar instability in the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020).

In evaluating the Veteran's current level of disability and whether separate compensable ratings are warranted, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, all of the VA examiners have noted that there was no evidence of additional range of motion loss after repetitive testing. Further, both the September 2014 and February 2021 examiners estimated that the Veteran would not have any further loss of motion during a flare-up. As such, even considering flare-ups the Veteran's limitation of motion of the right knee does not more nearly approximate the severity of limitation contemplated by higher ratings based on limitation of motion of the knee. As such, an increased rating based on further limitation of motion during flare-ups is not warranted in this case. Finally, the reports of pain on motion are already contemplated by the assigned 10 percent rating. 38 C.F.R. § 4.59.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor the record have raised any other issues. See Doucette, 28 Vet. App. at 36970. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected right knee disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

4. Entitlement to an increased rating for a left and right ankle disability.

As an initial matter, the rating criteria for musculoskeletal disabilities were amended on February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). As such, in considering whether increased ratings are warranted for the left or right ankle disability, the Board will consider whether increased ratings are warranted under the pre-amendment criteria first, and will then consider whether higher ratings are warranted under the post-amendment criteria. However, any higher ratings assigned under the amended criteria may only be effective as of the date of the amendment. See Kuzma , 341 F.3d 1327.

Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent rating is warranted for marked limitation of motion of the ankle. Id. Normal range of motion of the ankle is from 0 to 45 degrees plantar flexion and 0 to 20 degrees dorsiflexion. 38 C.F.R. § 4.71a, Plate II. 

The terms "moderate" and "marked" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

During the period on appeal, the Veteran has generally alleged that his ankle disabilities are worse than currently rated, but has provided no specific statements concerning the nature, frequency and severity of his symptoms. As such, the issue must be decided based on the medical evidence of record.

The Veteran underwent VA ankle examinations in September 2014, March 2018, April 2018, and February 2021. In September 2014 the Veteran reported ankle pain and flare-ups requiring him to rest for 20 to 30 minutes. The examiner found the Veteran was capable of left and right plantar flexion to 45 degrees and left and right dorsiflexion to 20 degrees. There was no evidence of pain on motion, and no further loss of motion with repetitive testing. There was no pain on palpation, ankylosis, or loss of use. Finally, the examiner stated that the Veteran would not have any further loss of range of motion in either ankle during flare-ups of the disability, or due to factors such as pain, weakness, or fatigability. Sharp, 29 Vet. App. at 3436.

In March 2018 the Veteran reported pain on movement and flare-ups manifested by increased pain. On examination the Veteran was capable of bilateral plantar flexion to 45 degrees and bilateral dorsiflexion to 20 degrees. Pain was present on active motion, passive motion and weightbearing, but not on non-weightbearing. Correia, 28 Vet. App. at 168. There was no further loss of range of motion with repetitive testing of either ankle, with the examiner further stating that range of motion loss during flare-ups would likely be minimal. No ankylosis or instability were present.

In April 2018, the Veteran reported pain with prolonged standing and climbing stairs, as well as flare-ups manifested by increased pain. On examination the Veteran was found to be capable of left and right plantar flexion to 45 degrees and dorsiflexion to 20 degrees. There was no evidence of pain on active motion, passive motion or weightbearing, but pain was present on non-weightbearing. Id. The examiner noted that there was no further loss of motion with repeat testing, and further that there was no ankylosis or instability of either joint.

Finally, in February 2021 the Veteran stated that he experienced pain on use in both ankles and difficulty walking. The Veteran further reported flare-ups of the ankle disabilities one to two times per week, lasting approximately 20 minutes. The examiner noted that the Veteran had bilateral plantar flexion to 45 degrees and bilateral dorsiflexion to 20 degrees, with no evidence of pain on active motion, passive motion, weightbearing or non-weightbearing. Id. There was no further loss of motion with repetitive testing, and the examiner estimated that the Veteran would have full range of motion bilateral during flare-ups, i.e. that there would be no further loss of motion of the left or right ankle during a flare-up. Sharp, 29 Vet. App. at 3436.There was no evidence of ankylosis or instability on examination.

There is no evidence the above examiners were not competent or not credible. In addition, each assessment of the left and right ankle disabilities was based on the Veteran's own reports of his symptoms and each examiner's own objective examination of the left and right ankle joint. Therefore, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

The Board notes that the September 2014 examination did not conduct the required testing for pain, and further that the April 2018 report did not include an estimate of loss of range of motion during flare-ups. However, these omissions do not render the other findings in the examination report inaccurate or unreliable, and therefore the Board may otherwise rely on the measurements and assessments recorded in each report. Further, the necessary testing for pain was conducted in the March 2018, April 2018, and February 2021 examinations, and both the September 2014 and February 2021 examiners provided estimates concerning range of motion loss during flare-ups. As such, the Board finds that there is sufficient evidence in the file to accurately rate the left and right ankle sprains. 

Treatment records reflect sporadic reports of bilateral ankle pain, but no further range of motion testing is of record. None of the treatment records reflect that the Veteran has ankylosis of either ankle. A March 2014 SSA disability assessment noted that the Veteran had full plantar and dorsiflexion.

Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted for the left or right ankle disability. As noted above, under the pre-amendment criteria the terms "moderate" and "marked" are not defined. The term "marked" is defined, in pertinent part, as "having a distinctive or emphasized character." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 761 (11 ed. 2003). Synonyms for the term "marked" include noticeable, conspicuous, prominent, pronounced, and striking. THE MERRIAM-WEBSTER THESAURUS 439, 484 (2005). 

In this case, the examination reports and the March 2014 SSA assessment reflect that he has full range of motion of both the left and right ankle. See 38 C.F.R. § 4.71, Plate II. As the Veteran has no actual loss of motion in either ankle, the Board cannot say that the left or right ankle disabilities more nearly approximately the degree of severity contemplated by higher ratings for the ankle, as the higher ratings contemplate limitation of motion that is distinct or emphasized. As such, an increased rating is not warranted under the pre-amendment criteria.

Further, an increased rating for either ankle is not possible under the post-amendment criteria. Under the post amendment criteria, marked limitation of motion of the ankle is defined as less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion. 85 Fed. Reg. at 76,464. As noted above, the medical evidence clearly reflects that the Veteran is capable of plantar flexion and dorsiflexion of both ankles well in excess of the limitations contemplated by a rating for marked limitation of motion of the ankle. Id. As such, an increased rating under the post-amendment criteria in effect from February 7, 2021 forward is not warranted for either the left or right ankle. 

In evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, all of the VA examiners noted that there was no evidence of additional range of motion loss after repetitive testing, which is designed to elicit further loss due to symptoms such as pain, weakness, and fatigability. Further, both the September 2014 and February 2021 examiners estimated that the Veteran's reported flare-ups would not result in any further loss of motion. Thus, even when considering flare-ups the Veteran's limitation of motion of the left or right ankle does not more nearly approximate the severity contemplated by higher ratings for limitation of motion of the ankle. As such, increased ratings for the left or right ankle based on further limitation of motion during flare-ups is not warranted in this case. Finally, the reports of pain on motion are already contemplated by the assigned 10 percent ratings. 38 C.F.R. § 4.59.

No additional higher or alternative ratings under different Diagnostic Codes for the left or right ankle disability can be applied. All of the medical evidence reflects that, even when considering additional loss of range of motion following repeated use over time, the Veteran is still capable of moving both ankles. Further, the VA examiners specifically noted that there was no ankylosis of the either ankle. As such, an increased rating based on ankylosis is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Further, there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or a history of an astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 52725274.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor the record have raised any other issues. See Doucette, 28 Vet. App. at 36970. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected left and right ankle disabilities. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

5. Entitlement to an increased rating for GERD.

When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the Diagnostic Code number will be the first two digits from the part of the schedule most closely identifying the part, or system of the body involved, and the last two digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20.

The Veteran's GERD is currently rated by analogy to Diagnostic Code 7346, governing hiatal hernias. Id. Under Diagnostic Code 7346, a 10 percent rating is warranted for two or more of the symptoms listed for the 30 percent evaluation but of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating 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. Id. 

While the Veteran has generally asserted that his GERD is worse than currently rated, he has not provided any statements specifying the type, frequency or severity of his symptoms. As such, the issue will be decided based on the medical evidence or record. 

The Veteran was provided with examinations to determine the severity of his GERD in September 2014 and April 2018. The September 2014 examiner noted that the Veteran reported mild heartburn and reflux symptoms. The examiner further noted no loss of weight, good appetite, and no pain or dysphagia. The examiner noted symptoms of pyrosis and reflux. The April 2018 examiner noted that the Veteran reported heartburn when eating spicy food. The examiner then noted symptoms of infrequent episodes of epigastric distress, pyrosis, and reflux. There is no evidence that either examiner was either not competent or credible. In addition, each assessment was based on both the Veteran's reports of his symptoms as well as objective examinations of the Veteran. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

VA treatment records reflect on-going treatment for GERD, but neither the VA treatment records or the SSA records indicate that the Veteran has impairment of health, weight loss, anemia, or material weight loss associated with his GERD.

Based on the above, the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted for GERD. While the Veteran has been noted to have pyrosis, regurgitation, and epigastric distress during the period on appeal, there is no evidence that these symptoms have resulted in any impairment of health, let alone considerable or severe impairment as contemplated by higher ratings for GERD. As there is no evidence of impairment of health resulting from the Veteran's symptoms, the Board finds that the disability picture does not more nearly approximate the level of severity contemplated by the higher available ratings for GERD. Therefore, an increased rating in excess of 10 percent for GERD is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. Both of the examiners noted that there was no evidence of esophageal stricture, spasm or diverticula. 38 C.F.R. § 4.114, Diagnostic Codes 72037205. The Veteran has not been diagnosed with any other gastrointestinal disabilities, nor has he displayed any symptoms which may be rated under any other gastrointestinal Diagnostic Code. Indeed, the primary symptoms displayed during the period on appeal are all directly contemplated by the currently assigned Diagnostic Code.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor the record have raised any other issues. See Doucette, 28 Vet. App. at 36970. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected GERD. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

6. Entitlement to an increased rating for allergic rhinitis.

The Veteran's allergic rhinitis is rated under Diagnostic Code 6522. Under Diagnostic Code 6522, allergic rhinitis without polyps but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6522. A 30 percent rating is warranted for allergic rhinitis with polyps. Id. Where a Diagnostic Code does not provide a noncompensable rating, a noncompensable rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

While the Veteran has generally asserted that his rhinitis is worse than currently rated, he has not provided any statements specifying the type, frequency or severity of his symptoms. As such, the issue will be decided based on the medical evidence or record. 

The Veteran was provided with VA examinations in September 2014 and April 2018. In September 2014, the Veteran reported recurrent nasal congestion. The examiner noted one non-incapacitating episode in the past 12 twelve months, but no incapacitating episodes. There was no history of sinus surgery. Finally, the examiner stated that there was not 50 percent obstruction of the nasal passage on both sides of the nose or complete obstruction of one side, nor was there evidence of hypertrophy, polyps or granulomatous conditions.

In April 2018 the Veteran reported frequent sneezing and the use of nasal sprays. The examiner noted no non-incapacitating or incapacitating episodes in the past 12 months, and further stated that there was not obstruction of 50 percent of the nasal passages on both sides or complete obstruction of the nasal passages on one side. Finally, the examiner stated that there was no hypertrophy, polyps or granulomatous conditions. There is no evidence that the above examiners were either not competent or credible. Additionally, each assessment was based both on the Veteran's account of his symptoms as well as an objective examination of the Veteran's nasal passages. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez, 22 Vet. App. 295.

A September 2014 CT report did not reflect any polyps or obstruction. VA treatment records reflect treatment for rhinitis, but no indication that the disability is manifested by polyps, incapacitating or non-incapacitating episodes of a sinus disability, or obstruction of the nasal passages. Likewise, SSA records associated with the file do not reflect the presence of nasal polyps or incapacitating or non-incapacitating episodes of any frequency. 

Based on the foregoing, the preponderance of the evidence is against a finding that a compensable rating is warranted for rhinitis. 38 C.F.R. § 4.31. None of the medical evidence reflects either 50 percent obstruction of both nasal passages or complete obstruction of one passage. Further, there is no medical evidence reflecting that the Veteran's rhinitis is manifested by polyps. As such, the Board finds that the Veterans' disability does not more nearly approximate the level of severity contemplated by the compensable ratings available for rhinitis. Thus, a compensable rating is not warranted. Id.

The Veteran is only service-connected for rhinitis, which is specifically covered by Diagnostic Code 6522. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. However, even if rating by analogy were appropriate, the Veteran does not meet the criteria for a compensable rating under any other potentially applicable Diagnostic Codes, including those for sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6514. 

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. Neither the Veteran nor the record have raised any other issues. See Doucette, 28 Vet. App. at 36970. The preponderance of the evidence is against a compensable rating for the Veteran's service-connected rhinitis. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

REASONS FOR REMAND

1. Entitlement to an increased ratting for major depressive disorder.

The Veteran was last provided with a VA examination concerning his psychiatric disability in April 2013. Since that examination, VA treatment records associated with the file reflect on-going treatment for the Veteran's major depressive disorder, including increasing depression and increased difficulty with interpersonal relationships. As there is an indication that the Veteran's psychiatric disability may have worsened since the most recent examination, a remand is necessary so that a new psychiatric examination may be provided. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VA Gen. Coun. Prec. 11-95.

The Board notes that the Veteran was scheduled for another VA psychiatric examination in April 2018, but that the examiner noted the Veteran failed to appear for the examination. However, the Board further notes that the Veteran appeared for several other examinations scheduled on the same date. Further, the Veteran has appeared for examinations scheduled in conjunction with other claims since missing the April 2018 examination. As such, the Board finds that the evidence of record indicates that the failure to appear to for the prior examination was a simple mistake, and does not reflect an unwillingness on the part of the Veteran to appear for examinations.

2. Entitlement to an increased rating for tinea versicolor.

During the pendency of the appeal, and since the most recent skin examination of record, the regulations governing the rating of skin disabilities were amended. 83 Fed. Reg. 32,592 (Jul. 13, 2018) (eff. Aug. 13, 2018). As such, a new examination is warranted in light of the new amended rating criteria for skin disabilities.

3. Entitlement to a TDIU.

Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning a TDIU. As such, it is inextricably intertwined with the increased rating claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the current severity of his psychiatric disability.

2. Schedule the Veteran for a VA examination to determine the current severity of his skin disability.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wendell, 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.