Citation Nr: 21029569
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 16-24 455
DATE: May 13, 2021

ORDER

Entitlement to service connection for traumatic brain injury (TBI) is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for diabetes mellitus, type II is denied.

Entitlement to service connection for left upper extremity diabetic peripheral neuropathy is denied.

Entitlement to service connection for right lower extremity diabetic peripheral neuropathy is denied.

Entitlement to service connection for left lower extremity diabetic peripheral neuropathy is denied.

Entitlement to service connection for sleep apnea to include as secondary to service-connected tinnitus and/or minimal small airway disease is denied.

Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 14, 2020, and in excess of 70 percent thereafter, is denied.

Entitlement to an increased disability rating in excess of 20 percent for right upper extremity radiculopathy associated with cervical spine strain prior to September 21, 2020, and in excess of 40 percent thereafter, is denied.

Entitlement to an increased disability rating in excess of 20 percent for arthroscopic right shoulder subacromial decompression prior to September 21, 2020, and in excess of 30 percent thereafter, is denied.

Entitlement to an increased disability rating in excess of 20 percent for status-post left shoulder distal clavicle resection is denied.

Entitlement to an increased disability rating in excess of 20 percent for cervical spine strain is denied.

Prior to September 21, 2020, entitlement to a separate 20 percent disability rating, but no higher, for radiculopathy of the left upper extremity associated with cervical spine strain is granted.

From September 21, 2020, entitlement to a separate 30 percent disability rating, but no higher, for radiculopathy of the left upper extremity associated with cervical spine strain is granted. 

Entitlement to an increased disability rating in excess of 10 percent for right knee strain is denied.

Entitlement to an increased disability rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD) is denied. 

Entitlement to a 10 percent rating, but no higher, for minimal small airway disease with history of positive tuberculosis PPD (purified protein derivative) is granted.

FINDINGS OF FACT

1. TBI residuals other than headaches are not currently manifest and did not manifest at any point during the appeal period.

2. Type II diabetes mellitus was not manifest during service or within one year of separation and is not otherwise related to service.

3. Hypertension was not manifest during service or within one year of separation and is not otherwise related to service.

4. Left upper extremity diabetic peripheral neuropathy was not manifest during service or within one year of separation and is not otherwise related to service or a service-connected disability.

5. Right lower extremity diabetic peripheral neuropathy was not manifest during service or within one year of separation and is not otherwise related to service or a service-connected disability.

6. Left lower extremity diabetic peripheral neuropathy was not manifest during service or within one year of separation and is not otherwise related to service or a service-connected disability.

7. Sleep apnea was not manifest in service and are not otherwise attributable to service.

8. Sleep apnea was not caused or aggravated by service-connected tinnitus and small airway disease with positive PPD.

9. Prior to September 14, 2020, the Veteran's PTSD manifested in disability tantamount to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).  Occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, and total occupational and social impairment were not shown.

10. From September 14, 2020, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  There is not total occupational and social impairment.

11. Prior to September 21, 2020, the Veteran's radiculopathy of the right upper extremity was manifested by no more than mild incomplete nerve paralysis.

12. From September 21, 2020, the Veteran's radiculopathy of the right upper extremity is manifested by no more than mild incomplete nerve paralysis.

13. Prior to September 21, 2020, the Veteran's right shoulder subacromial decompression was manifested by pain and limitation of motion of the arm no greater than the shoulder level.

14. From September 21, 2020, the Veteran's right shoulder subacromial decompression is manifested by pain and limitation of motion of the arm no greater than midway between the side and shoulder level.

15. The Veteran's left shoulder distal clavicle resection is manifested by pain and limitation of motion of the arm no greater than the shoulder level.

16. The Veteran's cervical spine strain has been manifested by pain and limitation of forward flexion to no less than 15 degrees; favorable ankylosis of the entire cervical spine is not shown.

17. Prior to September 21, 2020, the Veteran has radiculopathy of the left upper extremity associated with the cervical spine strain that was manifested by no more than mild incomplete nerve paralysis.

18. From September 21, 2020, the Veteran has radiculopathy of the left upper extremity associated with the cervical spine strain that was manifested by no more than moderate incomplete nerve paralysis.

19. The Veteran's right knee strain is manifested by complaints of pain and limited range of motion.  Flexion was better than 45 degrees and extension was better than 10 degrees.  There is no instability or subluxation.

20. The Veteran's hiatal hernia with GERD is manifested by pyrosis, reflux, and sleep disturbance and requires medication for treatment.  It has not manifested with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

21. The Veteran's small airway disease with positive PPD has not manifested by pulmonary function testing (PFT) showing FEV-1 of 56 to 70 percent predicted; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56 to 65 percent predicted.

CONCLUSIONS OF LAW

1. The criteria for service connection for TBI are not met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

2. The criteria for service connection for type II diabetes mellitus are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

3. The criteria for service connection for hypertension are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

4. The criteria for service connection for left upper diabetic peripheral neuropathy are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

5. The criteria for service connection for right lower diabetic peripheral neuropathy are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

6. The criteria for service connection for left lower diabetic peripheral neuropathy are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

7. The criteria for service connection for sleep apnea to include as secondary to service-connected tinnitus and small airway disease with positive PPD are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

8. Prior to September 14, 2020, the criteria for a disability rating more than 30 percent for PTSD have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

9. From September 14, 2020, the criteria for a disability rating more than 70 percent for PTSD have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

10. Prior to September 21, 2020, the criteria for a disability rating more than 20 percent for radiculopathy of the right upper extremity have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510.

11. From September 21, 2020, the criteria for a disability rating more than 40 percent for radiculopathy of the right upper extremity have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510.

12. Prior to September 21, 2020, the criteria for a disability rating in excess of 20 percent for right shoulder subacromial decompression are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201.

13. From September 21, 2020, the criteria for a disability rating in excess of 30 percent for right shoulder subacromial decompression are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201.

14. The criteria for a disability rating in excess of 20 percent for left shoulder distal clavicle resection are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201.

15. The criteria for a disability rating in excess of 20 percent for the Veteran's cervical spine strain are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242.

16. Prior to September 21, 2020, the criteria for a 20 percent disability rating for radiculopathy of the left upper extremity associated with cervical spine strain have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510.

17. From September 21, 2020, the criteria for a 30 percent disability rating for radiculopathy of the left upper extremity associated with cervical spine strain have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510.

18. The criteria for a disability rating more than 10 percent for right knee strain are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260.

19. The criteria for disability rating more than 10 percent for hiatal hernia with GERD are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346.

20. The criteria for 10 percent rating, but no higher, for small airway disease with positive PPD have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Codes 6600, 6604, 6731.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1984 to April 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that the Veteran requested a videoconference hearing.  Per correspondence dated in May 2019, his requested hearing was scheduled for July 15, 2019.  However, in June 2019, the Veteran's representative submitted a statement indicating that the Veteran wished to cancel his scheduled hearing. Accordingly, the Board deems the Veteran's hearing request to be withdrawn.

The Board remanded the Veteran's claims on appeal in January 2020.  All remand directives were completed, and the Veteran's claims folder has returned to the Board for further appellate consideration. 

In a November 2020 rating decision, the RO increased the Veteran's PTSD evaluation from 30 percent to 70 percent, effective September 14, 2020; and increased the evaluations for the Veteran's right upper extremity radiculopathy from 20 percent to 40 percent; as well as the Veteran's right shoulder subacromial decompression from 20 percent to 30 percent, both effective September 21, 2020.  These increased ratings do not constitute a full grant of the benefits sought and the rating issues remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

In January 2020, the Board remanded an issue of entitlement to service connection for migraine headaches as well as entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.  In a subsequent November 2020 rating decision, the RO awarded service connection for migraine headaches and awarded TDIU effective June 16, 2014.  In a subsequent March 2021 rating decision, the effective date for TDIU was changed to July 30, 2013.  In view of the foregoing, the migraine headaches and TDIU issues have been granted in full; they are resolved and are no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997).

In January 2020, the Board also remanded an issue of entitlement to service connection for right upper extremity diabetic peripheral neuropathy.  In this regard, the Board noted in the remand that an April 2016 statement of the case (SOC) incorrectly listed the issue on appeal as evaluation of peripheral neuropathy of the right upper extremity, currently 20 percent disabling.  However, the Veteran is not service connected for peripheral neuropathy and is, instead, service connected for radiculopathy of the right upper extremity associated with cervical spine strain and rated as 20 percent disabling.  As such, the analysis listed in the SOC applied to the evaluation of the service-connected right upper extremity radiculopathy associated with cervical spine strain and the agency of original jurisdiction (AOJ) had yet to issue a SOC with regard to the claim for service connection for right upper extremity diabetic peripheral neuropathy.  Therefore, the Board remanded this claim for the AOJ to issue a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  In accordance with the January 2020 remand directives, the AOJ issued a supplemental statement of the case (SSOC) dated November 2020 that adjudicated the claim of service connection for right upper extremity diabetic peripheral neuropathy.  The AOJ informed the Veteran that if he wished to continue his appeal as to this issue, he must file a formal appeal (VA Form 9).  A review of the record reveals that the Veteran did not file a formal appeal as to this issue following the issuance of the November 2020 SSOC.  Accordingly, that issue is not in appellate status and will be discussed no further herein.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C. § 7105 (a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA].

The Board additionally notes that in January 2020, issues of service connection for a right hip disability and increased disability ratings for thoracolumbar spine disability, left knee strain, eczema, tinnitus, hearing loss, left eye pterygium, and kidney stones were remanded for issuance of a SOC pursuant to Manlincon, supra.  A review of the record reveals that a November 2020 SOC continued the denial of these issues and the Veteran did not submit a substantive appeal (VA Form 9 or similar) in response.  As such, these issues are not in appellate status and will be discussed no further herein.  See Archbold, supra.

Service Connection

Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110 (wartime service), 1131 (peacetime service).  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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For certain chronic disorders, including type II diabetes mellitus, organic disease of the nervous system, and hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020).

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  38 U.S.C. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). 

Under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be accepted if they are consistent with the time, place and circumstances of such service.  38 U.S.C. §. 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  The Board notes the Veteran's receipt of the Combat Infantryman Badge due to service in Southwest Asia.  As such, although the Board accepts the Veteran's description of in-service combat experiences in Southwest Asia, the evidence must still establish by competent and probative evidence tending to show a current disability and a nexus between that disability and those service events.  See Gregory v. Brown, 8 Vet. App. 563 (1996); Kessel v. West, 13 Vet. App. 9 (1999); Libertine v. Brown, 9 Vet. App. 521 (1996).   

Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected.  However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b).

For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C. § 7104(a) (2012).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020).  

TBI

The Veteran contends that he has residuals of TBI that are related to service, in particular from exposures to blasts and RPG attacks as well as an exposure to a controlled blast from 1/4 to 1/2 miles away in December 2003 during service in Iraq.  See, e.g., an October 2020 VA examination report.  

The Board acknowledges the Veteran's report of exposure to blasts during service.  Further, he is currently service-connected for migraine headaches.  However, the postservice evidence of record establishes that the Veteran does not currently have any other TBI residuals.  Notably, the Veteran was provided a VA TBI examination in October 2020.  After examination of the Veteran and consideration of his medical history, the VA examiner reported that the Veteran's TBI resolved in 2003 and that the Veteran did not evidence any TBI residuals other than the service-connected migraine headaches.  There are no objective findings contrary to the VA examination report during the appeal period.      

In this case, the Board finds that the most probative evidence weighs against a finding that the criteria have been met for a current TBI disability.  In this regard, the Board finds it highly probative that the VA examiner indicated normal findings and that the examination was thorough.  

The Board has considered the Veteran's statements that he has residuals of a TBI.  The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011).  However, competence must be distinguished from probative weight.  Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there are current residuals of TBI, and therefore the preponderance of the evidence is against finding the existence of a current disability, other than the headache disability for which the Veteran is already service connected.  The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the VA examination report. 

In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have residual disability due to TBI other than the service-connected migraine headaches.  The existence of a current disability is the cornerstone of a claim for VA disability benefits.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  Therefore, in the absence of current disability, there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, there is no disability that resulted from a disease or injury.  The Board emphasizes that under the provisions of 1110 and 1131, there must be disability and such disability must be due to disease or injury.  

Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for TBI under any theory of entitlement and service connection must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Type II diabetes mellitus and hypertension

The Veteran contends that he has type II diabetes mellitus and hypertensin that are related to service.  

A review of the Veteran's service treatment records does not document any treatment specifically for diabetes.  However, multiple service treatment records note complaints of fatigue and headaches.  Also, an August 2000 service treatment record documents and elevated blood pressure reading of 147/80.  The remainder of the service treatment records are absent complaints of or treatment for diabetes and hypertension or symptoms associated therewith.  

The current medical evidence documents diagnoses of type II diabetes mellitus and hypertension.           

The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran's current type II diabetes mellitus and hypertension are related to his service.  

Specifically, the Veteran was provided VA examinations for his diabetes and hypertension in September 2020.  After examination of the Veteran and consideration of his medical history to include the in-service findings of fatigue, headaches, and elevated blood pressure, the VA examiner concluded that it is less likely than not that the Veteran's current diabetes and hypertension were incurred in or caused by service.

With regard to the diabetes, the VA examiner's rationale for his conclusion was based on his finding that diabetes is typically related to genetics or caused by lifestyle choices including smoking, obesity, sedentary lifestyle, or lack of physical activity.  The examiner further noted no treatment of diabetes during service.

With respect to the hypertension, the VA examiner's rationale for his conclusion was based on his finding that although the Veteran had an elevated blood pressure reading of 147/80 in August 2000, such finding was not sufficiently significant as to indicate a nexus.  Moreover, the examiner noted that hypertension is typically hereditary or caused by lifestyle choices including smoking, obesity, sedentary lifestyle, or lack of physical activity.  

The September 2020 VA examination was based on upon thorough review of the record and analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].  Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with diabetes or hypertension for multiple years after active service.  The examiner also noted the Veteran's in-service treatment for fatigue and headaches as well as the elevated blood pressure reading which was determined to be less likely as not related to the current diabetes and hypertension.  

The Veteran has not submitted a medical opinion to contradict the VA examiner's opinions that his current type II diabetes mellitus and hypertension are not related to service.  The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims.  He has not done so.  See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits].

Also, while the Board notes the Veteran's receipt of the Combat Infantryman Badge, the evidence does not show, and the Veteran does not contend, that the in-service combat in Southwest Asia caused the current type II diabetes mellitus and hypertension.

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

To the extent the Veteran himself asserts his current diabetes and hypertension are related to his service, the Veteran is competent to report that he has a current diagnosis for VA evaluation purposes (as that is documented in the record).  He is also competent to report that he has had symptoms since service.  However, diabetes and hypertension were not noted during service.  In as much as the February 2005 separation examination revealed normal blood sugar and blood pressure findings, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation.  38 C.F.R. § 3.303(b).  The Board observes that the Veteran has reported longstanding symptoms associated with diabetes and hypertension.  The Board notes that the Veteran is competent to report his symptoms both current and past.  However, this lay evidence is inconsistent with the normal findings upon separation from service in February 2005.  Further, the in-service examination is more credible and probative than his after-the-fact lay assertions.  The Board concludes that the normal examination upon separation is far more probative and credible than the lay evidence submitted in support of a claim for benefits.  The Board therefore finds that the Veteran's statements with regard to a nexus between his diabetes and hypertension and service to be of minimal probative value and outweighed by the VA opinions, prepared by a skilled neutral professional.

The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102 (2020).

Left upper, right lower, and left lower diabetic peripheral neuropathy

The Veteran contends that he has a left upper, right lower, and left lower diabetic peripheral neuropathy related to service.  Although the Board notes that the Veteran has alternatively contended that the left upper, right lower, and left lower diabetic peripheral neuropathy are secondary to type II diabetes mellitus, as discussed above, the Board finds that service connection is not warranted for type II diabetes mellitus and therefore service connection on a secondary basis is not warranted.

The Board acknowledges the Veteran's report that he has left upper, right lower, and left lower diabetic peripheral neuropathy.  However, the Board finds that the objective evidence outweighs his contention that left upper, right lower, and left lower diabetic peripheral neuropathy manifested in service or are otherwise due to service.  Crucially, the Veteran's service treatment records indicate no suggestion of treatment for or complaints of symptoms related to left upper, right lower, and left lower diabetic peripheral neuropathy.  Additionally, his February 2005 separation examination revealed normal neurological findings of the upper and lower extremities and the Veteran denied numbness/tingling in his hands and feet during February 2002 and March 2004 service examinations.  Indeed, the earliest indication of any of these disabilities is in 2013 when the Veteran filed his claims for VA benefits.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran].  This is more than five years after the Veteran's discharge from service.    

The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience).  38 C.F.R. § 3.159(a)(2).  As such, the Veteran can competently testify about symptoms he experienced in service.  However, competency must be distinguished from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno, 6 Vet. App. at 469.  In the present case, the Board finds that the Veteran's history of left upper, right lower, and left lower diabetic peripheral neuropathy since service is outweighed by the objective evidence of record considering the lack of any post service identification until 2013 as well as the available service treatment records which indicate normal neurological findings of the upper and lower extremities.      

Therefore, to the extent that the Veteran contends that his left upper, right lower, and left lower diabetic peripheral neuropathy manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and his denial of pertinent pathology.  As such, the Veteran's statements are lacking probative and lacking in credible value.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence].  Also, while the Board notes the Veteran's receipt of the Combat Infantryman Badge, the Veteran has not contended, and the evidence does not otherwise show, that the Veteran's current left upper, right lower, and left lower diabetic peripheral neuropathy are related to in-service combat.  Indeed, the Veteran reported during a September 2020 VA examination that the onset of the neuropathy symptoms was not until 2010.

In short, there is no credible evidence of an in-service manifestation of left upper, right lower, and left lower diabetic peripheral neuropathy.    

To the extent that the Veteran asserts that his left upper, right lower, and left lower diabetic peripheral neuropathy are related to service, the Board finds that the Veteran's statements regarding these disabilities being incurred in service is not credible given the objective evidence of record to include the service treatment records and the postservice medical records.

The Board also notes that in as much as the service treatment records reveal a normal neurological examination of the upper and lower extremities, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation.  38 C.F.R. § 3.303(b).  The Veteran has not contended otherwise.  

For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for left upper, right lower, and left lower diabetic peripheral neuropathy.  The benefits sought on appeal are accordingly denied.

Sleep apnea

The Veteran contends that he has sleep apnea that is related to service or is alternatively secondary to his service-connected tinnitus and/or small airway disease with positive PPD.      

Direct service connection

The Board notes that although the Veteran's service treatment records do not document treatment for sleep apnea specifically, they document respiratory problems that were progressing to the point that he could not sleep in July 2000, frequent trouble sleeping in February 2002, and in March 2004, he complained of difficulty breathing and still feeling tired after sleeping.  Further, the current medical evidence documents diagnosis of sleep apnea.  See, e.g., a VA examination report dated September 2020.  

The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran's sleep apnea is related to service.  

Specifically, the Veteran was provided a VA examination for his sleep apnea in September 2020.  After examination of the Veteran and consideration of his medical history to include the service treatment records, the VA examiner concluded that it is less likely than not that the Veteran's sleep apnea was incurred in or caused by service.  The examiner's rationale for his conclusion was based on his finding that sleep apnea is commonly caused by excess weight which is associated with soft tissue of the mouth and throat.  Further, during sleep, when throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked.  The examiner also noted that a review of the medical records did not indicate sleep apnea treatment during service.    

The September 2020 VA examination report was based on upon thorough review of the record and analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].  Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with sleep apnea for more than three years after service.  The examiner also noted review of the Veteran's service treatment records which documented the Veteran's aforementioned reports of difficulty sleeping and breathing and concluded that the Veteran's current sleep apnea was not related to service.  

The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current sleep apnea is not related to service.  The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim.  He has not done so.  See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits].

Also, while the Board notes the Veteran's receipt of the Combat Infantryman Badge, the evidence does not show, and the Veteran does not contend that the in-service combat in Southwest Asia caused the current sleep apnea.

To the extent the Veteran himself asserts his current sleep apnea is related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record).  He is also competent to report that he has had symptoms since service.  However, sleep apnea specifically was not noted during service and his February 2005 separation examination revealed normal findings.  While the Veteran had difficulty sleeping in service, this does not necessarily indicate that he also had sleep apnea, and no symptoms specifically associated with sleep apnea were reported.  The Board finds the  in-service examination is more credible and more probative than the Veteran's lay assertions that he believes sleep apnea began during service.  The Board concludes that the objective evidence is more probative and credible than the lay evidence submitted in support of a claim for benefits.  The Board finds that the Veteran's statements with regard to a nexus between his sleep apnea and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled medical professional.

Secondary service connection

The competent evidence establishes that the Veteran has sleep apnea.  See, e.g., the September 2020 VA examination report.  Additionally, the Veteran is currently service-connected for tinnitus and small airway disease with positive PPD.     

The Board has carefully evaluated the evidence and, but finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran's current sleep apnea is due to or aggravated by his service-connected tinnitus and small airway disease with positive PPD.

Specifically, the Veteran was provided a VA examination in September 2020.  After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran's sleep apnea is proximately due to or aggravated by the service-connected tinnitus and small airway disease with positive PPD.  The examiner's rationale for his conclusion was based on his finding that a common cause of sleep apnea is excess weight which is associated with soft tissue of the mouth and throat.  Further, during sleep, when the throat and tongue muscles are more relaxed, this soft tissue can cause the airway to become blocked.  The examiner noted that tinnitus and small airway disease do not result in or aggravate sleep apnea.  In this regard, small airway disease is typically associated with lung conditions such as asthma, bronchitis, and chronic obstructive pulmonary disease (COPD).  Moreover, neither tinnitus nor small airway disease would affect the soft tissues of the mouth and throat that cause sleep apnea.  Also, tinnitus is often caused by exposure to loud noises, whiplash, head injuries, too much ear wax, or medical side effects.  These factors do not result or aggravate the muscles of the mouth and throat associated with sleep apnea. 

The September 2020 VA medical opinion was based upon thorough consideration and analysis of the Veteran's pertinent medical history.  See Bloom, supra.  

The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that his current sleep apnea is not caused or aggravated by his service-connected tinnitus and small airway disease with positive PPD.  The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim, but he has not done so.  

The Board acknowledges the Veteran's statements that his sleep apnea is related to his service-connected tinnitus and small airway disease with positive PPD.  The Board notes that the Veteran is competent to report that he has been diagnosed with sleep apnea.  However, to the extent the Veteran proffers this information as a positive nexus between his sleep apnea and his service-connected tinnitus and small airway disease with positive PPD, the Board finds that such an opinion is outweighed by the evidence of record, in particular the September 2020 VA medical opinion which was based on thorough review of the Veteran's pertinent medical history and medical condition and supported by adequate rationale.  Therefore, this lay evidence is accorded little probative value.    

Here, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 

For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected tinnitus and small airway disease with positive PPD.  The benefit sought on appeal is accordingly denied.

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

PTSD

In an August 2008 rating decision, the RO awarded the Veteran service connection for an acquired psychiatric disorder to include PTSD and assigned a 10 percent disability rating.  In a subsequent February 2009 rating decision, the disability rating was increased to 30 percent effective September 5, 2008.  In July 2013, the Veteran filed an increased rating claim for the PTSD, and in a January 2014 rating decision, the RO continued the 30 percent rating.  The Veteran thereafter completed an appeal as to the increased rating issue.  Further, in a November 2020 rating decision, the RO increased the disability rating for PTSD to 70 percent effective September 14, 2020.

The Veteran's PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411.  Based on reported symptomatology, the Board finds that Diagnostic Code 9411 is the most appropriate Diagnostic Code to rate the Veteran's disability.  

PTSD is evaluated under the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  Under the General Rating Formula for Mental Disorders, a 100 percent rating requires 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.  Id. 

A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships.  Id.

A 50 percent rating requires occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships.  Id.

A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  

A 10 percent rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  

A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)).  

Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5).  See 79 Fed. Reg. 149, 45094.  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014.  Id.  VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014.  See 80 Fed. Reg. 53, 14308 (March 19, 2015).  The RO certified the Veteran's appeal to the Board in October 2016; therefore, the claim is governed by DSM-5.

The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice."  See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013).  As such, the Board finds that any assigned GAF scores are not persuasive in this appeal.

VA is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  The reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability.  See Mittleider, 11 Vet. App. at 181.

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms."  The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469.

The Veteran was provided a VA examination in December 2013.  The examiner noted a diagnosis of PTSD and opined that the PTSD manifested in no greater than occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The Veteran reported that he had been married three times previously but was currently divorced.  He noted that his jealousy was an issue in all marriages.  He had a son who he planned on visiting.  He reported that he maintained meaningful relationships with family, friends, neighbors, and residents of the town where he lived.  He further noted that he had a close friend whom he met after service.  He enjoyed walking in mornings and after dinner.  He also attended church services.  The examiner only documented anxiety as a symptom associated with the PTSD.

The Veteran was provided another VA examination in August 2015.  The examiner again noted a diagnosis of PTSD and opined that the PTSD manifested in no greater than occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The Veteran continued to report that he visited friends as well as his son.  He also enjoyed traveling and going to restaurants and auto shows.  The examiner documented PTSD symptoms of depressed mood and anxiety.  

On VA examination dated September 2020, the examiner documented diagnosis of PTSD manifested by occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he has "pretty bad" relationships with family members.  Although he struggled to make and maintain social relationships, he stayed in contact with some friends from service.  He also reported that he was arrested in 2019 when he confronted a man who threatened him.  The Veteran had a gun in his hand at the time.  He had not worked since 2009 when he worked as a security guard.  At that time, he reported bad relationships with co-workers and supervisors.  The examiner documented PTSD symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene.       

The Board notes that VA and private treatment records document treatment for the Veteran's PTSD symptoms which consist of panic attacks, hypervigilance, nightmares, irritability, anxiety, and use of medication for treatment.  An October 2019 vocational assessment by vocational rehabilitation consultant J.S. noted the Veteran's irritability and past difficulty maintaining employment due in part to his PTSD.

Based on the foregoing, the Board finds that prior to September 14, 2020, the overall severity, frequency, and duration of the mental health symptoms reflect that the Veteran is not entitled to a higher 50 percent disability rating for the service connected PTSD.  In this regard, the Board finds that the evidence indicates that the Veteran's PTSD, when considering severity, frequency, and duration of symptoms, is most closely approximated by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).  The Board finds that the Veteran's symptoms prior to September 14, 2020 are manifested by depressed mood, anxiety, suspiciousness, sleep impairment, and panic attacks.  These criteria are congruent with a 30 percent disability rating.    

The Board acknowledges that prior to September 14, 2020, the competent and probative medical and lay evidence documents the Veteran's difficulty adapting to stressful circumstances including work or a worklike setting.  This is criteria found in the 70 percent rating category; however, they cannot be viewed in isolation of the other evidence of the Veteran's overall functioning.  When considering the record as a whole, the Board does not find these symptoms to be of such severity, frequency, and/or duration to reach the level of occupational and social impairment considered by a 50 percent (or higher) disability rating.  Pertinently, the Board finds that the Veteran had not evidenced 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; or impaired abstract thinking.  On the contrary, the evidence indicates essentially normal finding with regard to these criteria.  

Also, while the Board notes the Veteran has reported social isolation, the Veteran did indicate a positive relationship with his son, that he had friends who he met up with, and that he attended church.  In January 2017, the Veteran reported having no real friends and isolating much of the time, but he had recently gone on vacation with his son, and that he really enjoyed himself.  These reports reflect that the Veteran was able to have positive social interactions and activities.  Therefore, the Board finds that difficulty in establishing effective work and social relationships has not been demonstrated.  As such, the criteria for an increased disability rating for PTSD prior to September 14, 2020 are not met.   

Additionally, from September 14, 2020, the Board finds that the Veteran is not entitled to a higher 100 percent disability rating for his PTSD.  While the Board accepts that the Veteran's PTSD significantly affected his functioning during this period, the lay and medical evidence of record does not demonstrate both total occupational and social impairment.  The Board notes that the Veteran has evidenced memory impairment as well as intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene.  However, the evidence does not demonstrate symptoms such as gross impairment in thought process or communication, grossly inappropriate behavior, persistent danger of hurting others, disorientation to time or place, or memory loss for names of close relatives or own name, or other symptoms on a par with the level of severity exemplified in these manifestations.  On the contrary, the Veteran has overall been found to have appropriate thought process and communication and has been oriented to time and place.  He has also denied being a danger to others and hallucinations were not persistent.  As such, the Board finds that the record as a whole does not support the existence of symptoms such that there is total occupational and social impairment during this period.

The Board has also considered the effective date of September 14, 2020 that has been assigned for the increased rating of 70 percent.  This effective date was assigned based on the date of the September 2020 examination which showed worsened symptomatology.  The Board acknowledges that effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable.  Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  The effective date for an increased rating should be based on the medical evidence showing when the increase in the level of disability actually occurred.  See 38 C.F.R. § 3.400(o)(2).  In this case, however, there is no evidence that the Veteran's psychiatric symptomatology worsened to a degree that would allow for a higher rating of 50 or 70 percent prior to September 14, 2020.  The September 2020 VA examination is the first evidence that such a severity had manifested, and it is therefore appropriate for setting the effective date of the increase.

The Board has considered all of the Veteran's symptoms, including those not specifically listed in the rating criteria.  As indicated above, the evidence of record reflects that the Veteran has symptomatology including sleep impairment, hyperarousal, feelings of isolation, and hypervigilance.  These symptoms are fully contemplated in the assigned evaluations.  However, the Board finds that such symptoms do not more nearly approximate a 50 percent rating prior to September 14, 2020 or a 100 percent rating thereafter.  The Board further finds the VA examination findings to be of significant probative value.  The examiner's objective medical conclusions with respect to the severity of the Veteran's occupational and social impairment, while not determinative, are not consistent with increased disability ratings.  To the extent that the Veteran has any of the criteria for a 50 percent rating prior to September 14, 2020 or for a 100 percent rating thereafter, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for higher ratings.

Based on all of the above, the Board finds that a disability rating greater than 30 percent is not warranted prior to September 14, 2020 or for more than 70 percent thereafter.  The Veteran's claim for a higher schedular ratings for his service-connected PTSD is denied.

Right upper extremity radiculopathy

The Veteran was awarded service connection for radiculopathy of the right upper extremity in a November 2014 rating decision and assigned a 20 percent disability rating effective October 6, 2014.  He filed a timely appeal as to the assigned disability rating.  In a November 2020 rating decision, the disability rating was increased to 40 percent effective September 21, 2020.

The Board notes that the Veteran is right hand dominant.  See, e.g., a November 2015 VA shoulder examination report.  Therefore, his right upper extremity is considered major.

The Veteran's right upper extremity radiculopathy is assigned a 20 percent rating prior to September 21, 2020 and a 40 percent rating thereafter pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8510 (upper radicular group (fifth and sixth cervicals).  Under that diagnostic code, for the major extremity, mild incomplete paralysis is rated as 20 percent disabling; moderate incomplete paralysis is rated 40 percent disabling; severe incomplete paralysis is rated 50 percent disabling; and complete paralysis of the upper radicular group (fifth and sixth cervicals) involving all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected is rated 70 percent disabling.  

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).

On VA examination dated October 2014, muscle strength testing was 4/5 for right elbow flexion and elbow extension and 5/5 in right wrist flexion, wrist extension, finger flexion, and finger abduction.  There were no signs of muscle atrophy.  Reflex testing for the right upper extremity was 1+ in the biceps, triceps, and brachioradialis.  Sensory examination in the shoulder area was normal but decreased in the inner/outer forearm and hand/fingers.  The examiner specifically documented "mild" severity of radiculopathy in the right upper extremity.  There were no other signs or symptoms of radiculopathy.  

On VA examination dated August 2015, the Veteran reported numbness and tingling in the right upper extremity.  Muscle strength testing was 5/5 for elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction.  There were no signs of muscle atrophy.  Reflex testing for the right upper extremity was 2+ in the biceps, triceps, and brachioradialis.  Sensory examination in the shoulder area and inner/outer forearm was normal but decreased in the hand/fingers.  The examiner reported no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  The examiner specifically characterized the Veteran's radiculopathy severity as "mild."  

On VA examination dated September 2020, muscle strength testing was 5/5 for right elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction.  There were no signs of muscle atrophy.  Reflex testing for the right upper extremity was 2+ in the biceps, triceps, and brachioradialis.  Sensory examination in the shoulder area was normal but decreased in the inner/outer forearm and hand/fingers.  The examiner reported no constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness.  The examiner specifically documented "moderate" severity of radiculopathy in the right upper extremity.  There were no other signs or symptoms of radiculopathy.

Based on the foregoing, the Board finds that prior to September 21, 2020, a disability rating more than 20 percent is not warranted for the Veteran's right upper extremity radiculopathy under Diagnostic Code 8510.  Specifically, the Board finds that moderate incomplete paralysis was not demonstrated at any time during this period.  The Board notes the October 2014 VA examination findings which document some impairment such as 4/5 muscle strength testing for right elbow flexion and elbow extension and 1+ reflex testing for the biceps, triceps, and brachioradialis.  Also, sensory examination in the shoulder area was decreased in the inner/outer forearm and hand/fingers.  Further, the August 2015 VA examination findings revealed decreased sensory examination in the hand/fingers.  However, other than the characterization of "mild" severity, the VA examinations reveal essentially normal neurological testing of the right upper extremity.  There are no objective findings to the contrary during this period.  As such, the Board finds that an increased disability rating is not warranted for the Veteran's right upper extremity radiculopathy prior to September 21, 2020.

Additionally, from September 21, 2020, the Board finds that a disability rating more than 40 percent is not warranted for the Veteran's right upper extremity radiculopathy under Diagnostic Code 8510.  The Board acknowledges the September 2020 VA examination findings of decreased sensory examination in the inner/outer forearm and hand/fingers.  Also, the examiner reported moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness.  However, the examiner characterized the Veteran's severity as "moderate."  Indeed, the neurological examination revealed otherwise normal findings, and there is no objective evidence contrary to the VA examination report during the period under consideration.  As severe incomplete paralysis is not demonstrated, the Board finds that an increased disability rating for the Veteran's radiculopathy of the right upper extremity is not warranted from September 21, 2020.

The Board has again considered the effective date of September 21, 2020 that was assigned for the increased rating of 40 percent.  This effective date was assigned based on the date of the September 2020 examination which showed worsened symptomatology, and this is the earliest date that it was factually ascertainable that such a worsening had occurred.  The Board therefore finds that this effective date is appropriate for the increased 40 percent rating.  See 38 C.F.R. § 3.400(o)(2); Swain, 27 Vet. App. 219, 224 (2015).  

Right shoulder subacromial decompression and left shoulder distal clavicle resection

The Veteran was awarded service connection for right shoulder subacromial decompression and left shoulder distal clavicle resection in an August 2008 rating decision with 10 percent ratings assigned.  After filing increased rating claims for the right and left shoulder disabilities, in a December 2015 rating decision, the Veteran was awarded 20 percent disability ratings for the shoulder disabilities.  Thereafter, in a November 2020 rating decision, the Veteran was awarded a 30 percent rating for the right shoulder disability effective September 21, 2020.  

The Veteran's right shoulder subacromial decompression is rated as 20 percent disabling prior to September 21, 2020 and 30 percent thereafter and the left shoulder distal clavicle resection is rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201 (arm, limitation of motion).  The evidence demonstrates that the Veteran's service-connected right and left shoulder disabilities are manifested by limitation of motion of the shoulders.  The Board also notes that the competent and probative evidence does not document ankylosis of the shoulders or impairment of the humerus.  Therefore, Diagnostic Code 5200 which pertains to ankylosis of the shoulder and Diagnostic Code 5202 which pertains to impairment of the humerus are not for consideration.  Also, while impairment of the clavicle has been noted, Diagnostic Code 5203 which pertains to impairment of the clavicle would not provide the Veteran with a higher disability rating for either shoulder as only a maximum 20 percent rating is warranted under that Diagnostic Code.  As such, the Board finds that Diagnostic Code 5201 is the most appropriate Diagnostic Code for application for both shoulder disabilities. 

Diagnostic Code 5201 provides a 20 percent rating for limitation of arm motion at shoulder level for both the major and minor joint; a 30 percent rating for limitation of arm motion midway between the side and shoulder level for the major joint and a 20 percent rating for the minor joint; and a 40 percent rating for limitation of arm motion to 25 degrees from the side for the major joint and a 30 percent rating for the minor joint.  As reflected in the record, the Veteran is right handed, and therefore his right shoulder is the major joint and his left shoulder is the minor joint.  See, e.g., the November 2015 VA shoulder examination report. 

Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees.  Normal external rotation and internal rotation are from 0 to 90 degrees.  38 C.F.R. § 4.71, Plate I.

The applicable rating criteria for musculoskeletal disorders, in particular shoulder disabilities, under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201)].  The Board notes that Diagnostic Code 5201 was amended to note that shoulder level is 90 degrees and midway is 45 degrees.  The Board notes that these rating criteria were not otherwise amended.  As such, the Board finds that remand for a new VA examination to consider the new rating criteria is not warranted as the evidence discussed below is sufficient to rate the Veteran's right and left shoulder disabilities.  

VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2020).  Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

The Veteran was provided a VA examination in November 2015.  He reported difficulty lifting and pushing.  He did not report flare-ups but reported functional loss manifested by difficulty lifting and pushing.  He did not use assistive devices.  Range of motion testing revealed right shoulder flexion to 90 degrees, abduction to 50 degrees, external rotation to 20 degrees, and internal rotation to 50 degrees and left shoulder flexion to 90 degrees, abduction to 70 degrees, external rotation to 20 degrees, and internal rotation to 50 degrees.  Pain was noted on examination and caused functional loss.  There was no evidence of pain with weight bearing or crepitus.  The Veteran was able to perform repetitive use testing with at least three repetitions on both sides with no additional loss of motion or functional loss.  There was no finding of ankylosis.  The Veteran was unable to perform Hawkins' Impingement test, Empty-can test, or lift-off subscapularis test on either side, and external rotation/infraspinatus strength test was negative on both sides.  The Veteran was also unable to perform crank apprehension and relocation test and cross-body adduction test.  The examiner noted that the Veteran's bilateral shoulder disabilities would limit his ability to carry or lift heavy items as well as doing any overhead activity and push movements involving the arms.

The Veteran was afforded another VA examinations in September 2020.  The Veteran continued to report difficulty lifting and pushing due to bilateral shoulder pain.  He reported flare-ups if he used his arms too much as well as functional loss manifested by difficulty lifting and carrying.  He did not use assistive devices.  Range of motion testing revealed right shoulder flexion to 90 degrees, abduction to 40 degrees, external rotation to 20 degrees, and internal rotation to 40 degrees and left shoulder flexion to 90 degrees, abduction to 60 degrees, external rotation to 20 degrees, and internal rotation to 40 degrees.  Pain was noted on examination and caused functional loss.  The examiner noted that passive range of motion testing was not different than active range of motion testing.  There was no evidence of pain with weight bearing, non-weight bearing, or crepitus.  The Veteran was able to perform repetitive use testing with at least three repetitions on both sides with no additional loss of motion or functional loss.  The examiner noted that repetitive use over time testing would result in right shoulder flexion to 80 degrees, abduction to 40 degrees, external rotation to 20 degrees, and internal rotation to 40 degrees and left shoulder flexion to 80 degrees, abduction to 60 degrees, external rotation to 20 degrees, and internal rotation to 30 degrees.  The examiner also reported that range of motion testing with consideration of flare-ups would result in right shoulder flexion to 80 degrees, abduction to 40 degrees, external rotation to 20 degrees, and internal rotation to 30 degrees and left shoulder flexion to 80 degrees, abduction to 60 degrees, external rotation to 20 degrees, and internal rotation to 30 degrees.  There was no finding of ankylosis.  The Veteran tested positive for Hawkins' Impingement testing on both sides, negative for external rotation/infraspinatus strength test and lift-off subscapularis test on both sides, and was unable to perform empty-can test on both sides.  He was unable to perform cross-body adduction testing.  

The Board adds that VA treatment records note the Veteran's continued report of bilateral shoulder pain.  Also, the Board notes statements from the Veteran and his wife documenting right shoulder pain for many years that have affected his ability to maintain employment and caused difficulty with lifting and reaching.  

Based on the evidence of record, the Board finds that prior to September 21, 2020, the Veteran's right shoulder symptomatology does not warrant an evaluation in excess of 20 percent under Diagnostic Code 5201.  Also, his left shoulder symptomatology does not warrant an evaluation in excess of 20 percent under Diagnostic Code 5201 at any time during the appeal period.  A higher 30 percent disability rating is warranted when functional equivalent of limitation of shoulder motion is no greater than midway between side and shoulder level.  Deluca, 8 Vet. App. at 204-207; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (addressing what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups).  Here, the Veteran reported the presence of pain.  However, the pain did not functionally limit motion to midway between the side and shoulder level or less in either shoulder.  Furthermore, pain is contemplated in the assigned evaluations.  

Therefore, although the Veteran reported limitation in reaching overhead and generally limited use of his right arm, the statements do not establish limitation of function to midway between the side and shoulder level or less.  The Board finds the November 2015 VA examination report in particular to be of significant probative value as this was based on a thorough examination of the Veteran and further does not reveal limitation of motion to midway between the side and shoulder level or less in either shoulder.  There are no medical findings contrary to the November 2015 VA examination during the period under consideration.  As limitation of right shoulder motion prior to September 21, 2020 and left shoulder motion throughout the appeal period is greater than midway between the side and shoulder level, a higher rating is not warranted as to the Veteran's service-connected right shoulder disability prior to September 21, 2020 and for his service-connected left shoulder disability at any time during the appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Additionally, the Board finds that from September 21, 2020, the Veteran's right shoulder symptomatology does not warrant an evaluation in excess of 30 percent under Diagnostic Code 5201.  A higher 40 percent disability rating is warranted when right shoulder motion is no greater than 25 degrees from the side.  Deluca, Mitchell, and Sharp, supra.  Here, the Veteran reported the presence of pain.  However, the pain did not functionally limit motion to 25 degrees from the side or less.  Therefore, although the Veteran reported limitation in reaching overhead and generally limited use of his right arm, the statements do not establish limitation of function to 25 degrees or less from the side.  The Board finds the September 2020 VA examination report in particular to be of significant probative value as this was based on a thorough examination of the Veteran and further does not reveal limitation of motion to 25 degrees or less from the side.  There are no medical findings contrary to the September 2020 VA examination during the period under consideration.  As limitation of right shoulder motion from September 21, 2020 is greater than 25 degrees from the side, a higher rating is not warranted as to the Veteran's service-connected right shoulder disability from September 21, 2020.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.

The Board has considered the effective date of September 21, 2020 that was assigned for the increased rating of 30 percent.  This effective date was assigned based on the date of the September 2020 examination which showed worsened symptomatology, and this is the earliest date that it was factually ascertainable that such a worsening had occurred.  The Board therefore finds that this effective date is appropriate for the increased 30 percent rating for the right shoulder disability.  See 38 C.F.R. § 3.400(o)(2); Swain, 27 Vet. App. 219, 224 (2015).  

Cervical spine strain

The Veteran was awarded service connection for cervical spine strain in a February 2009 rating decision and assigned a 10 percent evaluation.  He filed an increased rating claim in June 2014 and in a November 2014 rating decision, his disability rating was increased to 20 percent effective June 16, 2014.  The Veteran filed a timely appeal as to the assigned disability rating.  

The Veteran's cervical spine strain is rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (degenerative arthritis of the spine).  

The evidence of record indicates that the Veteran has been diagnosed with cervical strain.  See, e.g., the September 2020 VA examination report.  Based on reported symptomatology, and consistent with Diagnostic Code 5243, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome.   

The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 

A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.

A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply.

A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.

A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.

A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.

Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician.

On October 2014 VA examination, the Veteran reported neck stiffness with limited range of motion.  He reported flare-ups in the morning and afternoon.  He did not use assistive devices.  Range of motion measurements of the neck indicated 30 degrees flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 45 degrees right rotation, and 45 degrees left rotation with no objective evidence of pain reported.  Repetitive-use testing with at least three repetitions resulted in 20 degrees forward flexion, 20 degrees extension, 25 degrees right lateral flexion, 25 degrees left lateral flexion, 45 degrees right lateral rotation, and 45 degrees left lateral rotation.  There was no finding of ankylosis.  

On August 2015 VA examination, the Veteran continued to report neck stiffness and pain as well as flare-ups and functional loss manifested by inability to turn and move his head.  He did not use assistive devices.  Range of motion testing revealed forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 60 degrees.  Pain was noted on examination and caused functional loss.  There was no evidence of pain with weight bearing.  Repetitive use testing with at least three repetitions did not result in additional loss of function or motion.  There was no finding of ankylosis. 

On VA examination dated September 2020, the Veteran continued to report neck stiffness with loss of motion.  He reported flare-ups which occurred on a weekly basis and he had to reduce activity due to the flare-ups.  He also noted functional loss in that it was painful to turn his head.  Range of motion testing revealed forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 60 degrees.  Pain was noted on examination and caused functional loss.  There was no evidence of pain with weight bearing.  Repetitive use testing with at least three repetitions did not result in additional loss of function or motion.  Regarding repetitive use over time, the examiner noted range of motion testing of 30 degrees forward flexion, 30 degrees extension, 30 degrees right and left lateral flexion, and 55 degrees right and left lateral rotation.  The examiner noted that range of motion testing during a flare-up resulted in 30 degrees forward flexion, 30 degrees extension, 30 degrees right and left lateral flexion, and 55 degrees right and left lateral rotation.  There was no finding of ankylosis.  

After review of all the evidence regarding the orthopedic manifestations of the Veteran's cervical spine strain, the Board finds that a rating in excess of 20 percent is not warranted.  A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  The most probative evidence of record does not indicate that the Veteran's cervical spine disability has been manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  In this regard, forward flexion of the cervical spine was manifested by no less than 20 degrees forward flexion and there is no evidence of ankylosis of the cervical spine.  Therefore, the 20 percent evaluation is warranted for limitation of motion.

With regard to the DeLuca factors, the Board notes the Veteran's complaints such as pain, flare-ups, and weakness, and the Board has taken those complaints into consideration in its above discussion.  However, the Board finds that the evidence does not support a finding that the Veteran's functional loss causes additional disability that approximates a 30 percent rating at any point during the appeal period. 

The Board also finds that a higher rating is not warranted at any period under consideration under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Crucially, the evidence does not indicate that the Veteran has been prescribed bed rest by a physician based on incapacitating episodes at any period under consideration.  Therefore, the Veteran's cervical spine strain does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal.

Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2020); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, the evaluation of the same disability under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2020); see also Fanning v. Brown, 4 Vet. App. 225 (1993).

Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293 a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. 

As discussed above, the Board has adjudicated the Veteran's claim of entitlement to an increased disability rating for radiculopathy of the right upper extremity associated with the cervical spine strain.  However, the Veteran has also reported numbness and tingling in his left upper extremity.  See, e.g., the August 2015 VA examination report.  The Board notes that 38 C.F.R. § 4.124a, Diagnostic Code 8510 (upper radicular group (fifth and sixth cervicals)) is the applicable Diagnostic Code for the Veteran's left upper extremity impairment.  Under Diagnostic Code 8510, a 20 percent rating is warranted for mild incomplete nerve paralysis of the minor extremity, a 30 percent rating is warranted for moderate incomplete nerve paralysis of the minor extremity, a 40 percent rating is warranted for severe incomplete nerve paralysis of the minor extremity, and a 60 percent rating is warranted for complete paralysis (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected).  The Board notes that the Veteran is right hand dominant and as such, his left arm is his minor extremity.  

After review of the record, the Board finds that pursuant to Diagnostic Code 8510, a separate 20 percent rating is warranted for radiculopathy of the left upper extremity prior to September 21, 2020 and a 30 percent rating is warranted thereafter.  In this regard, the August 2015 VA examination specifically noted the Veteran's left upper extremity radiculopathy as "mild" and the examination report further noted mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  The October 2014 VA examination documented 1+ reflex testing in the biceps, triceps, and brachioradialis.  As such, the Board finds that a 20 percent rating is warranted.  The Board further notes that a rating more than 20 percent prior to September 21, 2020 is not warranted as the evidence does not otherwise demonstrate impairment consistent with moderate incomplete paralysis.  Indeed, the October 2014 and August 2015 VA examination reports demonstrated normal findings other than the aforementioned abnormal findings.  These findings are not contradicted by the remainder of objective evidence prior to September 21, 2020.

From September 21, 2020, the Board finds that a 30 percent rating is warranted for left upper extremity radiculopathy under Diagnostic Code 8510 as the evidence demonstrates moderate incomplete paralysis.  Notably, the September 21, 2020 VA examination documents the examiner's finding of "moderate" radiculopathy of the left upper extremity.  Also, sensory examination indicated decreased inner/outer forearm and decreased hand/fingers.  Further, there was moderate intermittent pain and paresthesias and/or dysesthesias as well as mild numbness.  In light of the foregoing, the Board finds that moderate incomplete paralysis was demonstrated and a 30 percent rating is warranted for the Veteran's left upper extremity radiculopathy from September 21, 2020.  The Board has again considered the effective date of September 21, 2020 is the appropriate effective date for this increased rating, as the September 2020 VA examination is the earliest date that such worsened symptomatology was demonstrated.  See 38 C.F.R. § 3.400(o)(2);  Swain, 27 Vet. App. 219, 224 (2015).  

The Board further notes that a rating more than 30 percent is not warranted as the evidence does not show severe incomplete paralysis required for a higher 40 percent.  Indeed, other than the aforementioned abnormalities, neurological testing during the September 2020 VA examination was normal and there are no objective findings contrary to the VA examination report during the period under consideration.  

Right knee strain

The Veteran was awarded service connection for right knee strain in a February 2009 rating decision with an assigned 10 percent rating.  The Veteran filed an increased rating claim in July 2013.  The 10 percent evaluation was continued in the January 2014 rating decision.  The Veteran thereafter perfected an appeal as to the assigned disability rating.

The Veteran's right knee strain is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of leg flexion).  The Board notes that the Veteran's right knee strain is primarily manifested by knee pain and limitation of motion.  As such, the Board finds that Diagnostic Codes 5260 and 5261 which pertain to knee flexion and extension and will be discussed immediately below, are for application.     

Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted.  When flexion is limited to 45 degrees, a 10 percent rating is warranted.  Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating.  

Diagnostic Code 5261 rates based on limitation of leg extension.  That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned.  Extension limited to 10 degrees warrants a 10 percent rating.  When limitation of extension is at 15 degrees, a 20 percent rating is warranted.  Extension limited to 20 degrees warrants a 30 percent rating.  Extension limited to 30 degrees warrants a 40 percent rating.  Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating.

VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint.  VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004).  

VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14.  However, any such separate rating must be based on additional disabling symptomatology.  Additionally, under 38 C.F.R. § 4.59 (2020), it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint.  This applies even if arthritis is not shown.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020).  Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating.  

The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence 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. 

The Board additionally notes that there is no evidence of ankylosis of the right knee, frequent locking of the knee, disability caused by cartilage removal, or impairment of the tibia and fibula.  Thus, Diagnostic Codes 5256, 5258, 5259, and 5262 do not apply in this case. 

As noted above, the applicable rating criteria for musculoskeletal disorders, were amended, effective February 7, 2021.  The Board notes that Diagnostic Code 5257 was significantly revised.  Specifically, under the current Diagnostic Code 5257, regarding recurrent subluxation or lateral instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; a 20 percent rating is warranted for one of the following  (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation and (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation.  Also, regarding patellar instability, a 10 percent rating is warranted when a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is warranted when a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; and a 30 percent rating is warranted when a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.  

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110.  Therefore, the Board will consider the Veteran's claim under the old Diagnostic Code 5257 criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.

The Veteran was provided a VA examination in December 2013 for his right knee.  He reported pain and locking in the knee.  He did not report flare-ups.  Range of motion testing revealed right knee extension to zero degrees and flexion to 120 degrees with no objective evidence of painful motion.  Range of motion testing in three repetitive motions were the same.  The examiner noted functional impairment manifested by pain on movement.  The Veteran had tenderness or pain to palpation for joint line or soft issue of the knee.   

On VA examination dated August 2015, the Veteran reported constant pain, weakness, "giving out," and occasional swelling.  He did not use assistive devices.  The examiner noted review of an August 2013 X-ray that revealed normal findings.  He did not report flare-ups or functional loss.  Range of motion testing revealed flexion to 120 degrees and zero degrees extension.  Pain was noted on examination but did not cause functional loss.  There was no evidence of pain with weight bearing.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  There was no evidence of crepitus.  Range of motion testing in three repetitive motions were the same.  There was no finding of ankylosis.    

On VA examination dated September 2020, the Veteran reported worsening right knee pain as well as flare-ups when he stood and functional loss when standing or walking for prolonged periods.  He did not use assistive devices.  Range of motion testing revealed flexion to 110 degrees and zero degrees extension.  The examiner noted that range of motion itself did not contribute to a functional loss.  Pain was noted on examination but did not result or cause functional loss.  There was no evidence of pain with weight bearing.  There was no objective evidence of localized tenderness, pain on palpation, or crepitus.  Range of motion testing in three repetitive motions were the same.  The examiner noted that repeated use over time as well as during a flare-up would reveal range of motion findings of flexion to 105 degrees and extension to zero degrees.  There was no finding of ankylosis.  

The Board notes that VA and private treatment records also document the Veteran's report of right knee pain.  

With regard to forward flexion of the Veteran's right knee, Diagnostic Code 5260 contemplates a noncompensable evaluation where there is limitation of knee flexion to 60 degrees.  In this case, multiple right knee range of motion examinations discussed above document knee flexion well above 60 degrees.    Therefore, no probative evidence establishes that flexion was ever less than 60 degrees.  As discussed above, the VA examinations indicate range of motion in the right knee much greater than 60 degrees even with consideration of pain on motion.  Thus, a higher disability rating for right knee flexion cannot be assigned based on Diagnostic Code 5260 for any period under consideration.  

With regard to extension of the Veteran's right knee, Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees.  In this case, multiple range of motion findings document extension to no greater than zero degrees even with consideration of pain on motion.  Thus, without limitation of extension of 10 degrees or more, a compensable disability rating for right knee extension cannot be assigned based on Diagnostic Code 5261.  

Accordingly, an increased disability rating is not warranted as to the Veteran's right knee strain under Diagnostic Codes 5260 or 5261 during any period under consideration.

The Board also notes that the probative evidence of record is pertinently absent that either recurrent subluxation or lateral instability of the Veteran's right knee exists such that a separate rating under Diagnostic Code 5257 is warranted under the old rating criteria.  In this regard, stability testing conducted during the December 2013, August 2015, and September 2021 VA examinations revealed normal findings and the examination reports indicate no recurrent subluxation or lateral instability.  There is no objective evidence to the contrary.  The Board further notes that there is no relevant evidence dated following February 7, 2021 at which time the new rating criteria under Diagnostic Code 5257 would be for application.  As such, a separate rating under Diagnostic Code 5257 is not for application for the Veteran's right knee.  

The Board considered whether higher and/or separate ratings would be warranted for the right knee strain on the basis of functional impairment and loss.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020).  The Board has also considered the lay and medical evidence regarding the right knee.  The VA examiners did not contradict the Veteran's report of pain.  Here, the Board finds no basis to reject the applicability of section 4.59.  Periarticular pathology productive of painful motion warrants at least the minimum compensable evaluation for the joint.  The Board finds that the current evaluation contemplates pathology productive of painful motion.  

Accordingly, the Board finds that a disability rating more than 10 percent is not warranted for the Veteran's right knee strain.

Hiatal hernia with GERD  

The Veteran was awarded service connection for hiatal hernia with GERD in an August 2008 rating decision with a 10 percent disability rating assigned.  He filed an increased rating claim in July 2013.  Following the denial of the claim in the January 2014 rating decision, the Veteran perfected an appeal as to the increased rating issue. 

The Veteran's hiatal hernia with GERD is evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346.  GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia.  See 38 C.F.R. § 4.20 (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).  Hiatal hernia is evaluated as follows: symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent); persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); and with two or more of the symptoms for the 30 percent evaluation of less severity (10 percent). 

There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14.  38 C.F.R. § 4.113. 

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.  A single evaluation will be assigned under the Diagnostic Code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.  38 C.F.R. § 4.114.

The Veteran was provided a VA examination in August 2015.  The examiner noted symptoms of pyrosis, reflux, regurgitation, sleep disturbance, and nausea as well as use of medication for treatment.  The Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus.    

The Veteran was afforded another VA examination in September 2020.  He continued to report taking medication for treatment.  The examiner documented symptoms of pyrosis, reflux, sleep disturbance, and nausea.  The Veteran did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus.

Based on review of the evidence of record, the Board finds that the Veteran's main complaints as to his diagnosed GERD appear to pertain to reflux symptoms and on review, the predominant disability picture is reflected under Diagnostic Code 7346.  Thus, the Board will apply this diagnostic code. 

The Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's GERD.  In this regard, the Board finds that the evidence does not demonstrate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health which is required for the higher 30 percent disability rating.  Indeed, the VA examination report documented only infrequent episodes of epigastric distress, pyrosis, and reflux.  There are no findings to the contrary.  

That Board adds that although the record indicates that medication is generally effective in managing the Veteran's symptoms, the Board acknowledges that the Court has held that, where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication.  Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012).  However, there is no indication that if the Veteran did not take medication to manage his symptoms that a higher 30 percent disability rating would be warranted.  Indeed, the only symptoms noted by the Veteran during the period under consideration involve pyrosis, reflux, regurgitation, sleep disturbance, and nausea.  The Veteran has not contended otherwise.    

As such, the Board finds that a 30 percent disability rating for the Veteran's hiatal hernia with GERD is not warranted under Diagnostic Code 7346.  The Board further finds that a 60 percent rating is not warranted under Diagnostic Code 7346 as the evidence during the period under consideration does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

Accordingly, the Board finds no basis for assigning a rating greater than 10 percent for the Veteran's hiatal hernia with GERD at any time during the appeal period.  

Small airway disease with positive PPD

In an August 2008 rating decision, the RO awarded service connection for minimal small airway disease with history of positive PPD (claimed as asthma/bronchitis) and assigned a noncompensable evaluation.  In June 2014, the Veteran filed an increased rating claim and the noncompensable evaluation was continued in the November 2014 rating decision.  The Veteran filed a timely appeal as to the November 2014 rating decision.  

The Veteran's small airway disease with positive PPD is rated noncompensable pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6604-6731 (chronic obstructive pulmonary disease (COPD); tuberculosis, pulmonary, chronic, inactive).  Diagnostic Code 6731 instructs to rate residuals as interstitial lung disease, restrictive lung disease, or, when obstructive lung disease is the major residual, as chronic bronchitis (Diagnostic Code 6600).  

The Board notes that the Veteran's respiratory disorder is manifested as COPD.  As his major residual of tuberculosis is an obstructive disease, the Board will rate the Veteran pursuant to Diagnostic Code 6600.

Under Diagnostic Code 6600, a 10 percent evaluation is warranted where a Pulmonary Function Test (PFT) indicates one of the following: Forced Expiratory Volume (FEV-1) of 71 to 80 percent predicted; a ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted.

A 30 percent evaluation is warranted where a PFT indicates one of the following: FEV-1 of 56 to 70 percent predicted; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56 to 65 percent predicted.

A 60 percent evaluation is warranted where a PFT indicates one of the following: FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).

A 100 percent evaluation is warranted where a respiratory disability manifests one of the following: FEV-1 less than 40 percent of predicted value; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or a requirement for outpatient oxygen therapy.

When evaluating based on pulmonary function tests (PFTs), post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, use the pre-bronchodilator values for rating purposes.  When there is disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, the Board uses the test result that the examiner states most accurately reflects the level of disability.  See 38 C.F.R. § 4.96(d)(5), (6).

The Board finds that the preponderance of the evidence indicates that affording the Veteran the benefit of the doubt, a 10 percent rating is warranted for the Veteran's small airway disease.  

On VA examination dated October 2014, PFT testing revealed FVC of 81 percent predicted, FEV-1 of 79 percent predicted, FEV-1/FVC of 76 predicted, and DLCO of 76 percent predicted.  The examiner noted that post-bronchodilator testing was not required as pre-bronchodilator results were normal and the testing was not indicated for the Veteran's condition.  The examiner further reported that FEV-1/FVC most accurately reflected the Veteran's level of disability.  

On VA examination dated August 2015, PFT testing revealed FVC of 78 percent predicted, FEV-1 of 74 percent predicted, FEV-1/FVC of 74 percent predicted, and DLCO of 99 percent predicted.  Post-bronchodilator testing was not done as the examiner indicated that the PFT results accurately reflected the Veteran's current pulmonary function and FEV-1/FVC in particular most accurately reflected the Veteran's level of disability.  

On VA examination dated September 2020, PFT testing revealed FVC of 102 percent predicted, FEV-1 of 95 percent predicted, FEV-1/FVC of 96 percent predicted, and DLCO of 85 percent predicted.  Pertinently, the examiner noted that post-bronchodilator testing was not done as the pre-bronchodilator results were normal, and that FEV-1 predicted most accurately reflected the Veteran's level of disability.  

While the September 2020 VA examination results indicate that a 0 percent rating should be assign, the Board will afford the Veteran the benefit of the doubt and accept that the October 2014 and August 2015 examination results most accurately represent his pulmonary function impairment, and that the September 2020 examination may be an outlier.  The Board therefore finds that a 10 percent rating can be assigned for the entire period on appeal.  

At no time, however, has the Veteran ever been found to meet the criteria for a rating higher than 10 percent at any VA examination, nor is there any indication of such a level of impairment in any other treatment records.  At no time has he had FEV-1 of 56 to 70 percent predicted; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56 to 65 percent predicted.  There are no medical findings contrary to the VA examination reports discussed above.  

For the foregoing reasons, the Board concludes that the preponderance of the evidence indicates that a 10 percent rating, but no higher, is warranted for the Veteran's small airway disease for the entire period on appeal.  The Board has considered the applicability of the benefit-of-the-doubt doctrine, but the preponderance of the evidence is against any rating higher than 10 percent.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nadia Kamal, 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.