Citation Nr: 21042680 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-15 061 DATE: July 13, 2021 ORDER The claim of entitlement to an initial evaluation in excess of 50 percent for a chronic adjustment disorder with anxiety and depression (previously diagnosed as posttraumatic stress disorder (PTSD) with dysthymia) (hereinafter adjustment disorder) is denied. The claim of entitlement to an evaluation in excess of 20 percent, prior to and as of, January 28, 2014, for degenerative disc disease of the thoracolumbar spine with scoliosis and muscle spasms (hereinafter a back disability) is denied. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. During the period on appeal the Veteran's adjustment disorder manifested to occupational and social impairment with reduced reliability and productivity. 2. During the period on appeal the Veteran's back disability manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. The Veteran's back disability was granted service connection at 10 percent disabling effective May 21, 2009, in a September 2009 rating decision. No timely Notice of Disagreement (NOD) was filed and the rating decision became final. 4. The Veteran filed a claim for an increased rating for his back disability on January 25, 2011, which was denied in an April 2013 rating decision. No timely NOD was filed and the rating decision became final. 5. The Veteran filed an intent to file claim for increased rating for his back disability on January 28, 2014, which was granted in a June 2014 rating decision. 6. The Veteran does not meet the preliminary schedular requirements for a TDIU, nor is he otherwise unable to obtain or maintain substantially gainful employment as a result of a service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an initial evaluation in excess of 50 percent an adjustment disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9440. 2. The criteria to establish entitlement to an evaluation in excess of 20 percent, prior to and as of, January 28, 2014, for a back disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110, 7105; 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DCs 5003,5010, 5242, 20.302. 3. The criteria to establish a claim of entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from August 2004 to October 2004, and with the United States Marine Corps from August 2006 to February 2007, and May 2008 to May 2009 with additional periods of Reserve service. These matters are before the Board of Veteran's Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for the Veteran's adjustment disorder, denied entitlement to an award of a TDIU, and granted an increased rating for the Veteran's back disability from 10 percent disabling to 20 percent disabling, effective January 28, 2014. The Board also finds that the Veteran was scheduled for a hearing on March 26, 2019, of which he did not attend. As of the date of this opinion no documentation has been received by VA from the Veteran indicating a need to reschedule, as such the Veteran's claim will be processed as though the request for a hearing had been withdrawn. No further requests for a hearing will be granted for this claim unless the Veteran provides correspondence indicating a good cause as to why the Veteran did not attend the hearing scheduled. See 38 C.F.R. § 20.704 (d). The Board remanded the Veteran's claims in a remand decision issued December 2019. The Board indicated that the Veteran's claims for increased ratings required a new VA examination for his adjustment disorder and that VA had to develop the Veteran's claim for increased rating for his back disability for outstanding VA medical records. The Veteran's claim for an award of a TDIU was found to be intertwined with the remanded increased rating claims. The Veteran was provided a new VA examination for his adjustment disorder in February 2021, and for his back disability in March 2021, and additional VA records were requested and submitted. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping, such as pyramiding, with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an initial evaluation in excess of 50 percent for an adjustment disorder The Veteran contends that he is entitled to an evaluation in excess of 50 percent for his adjustment disorder. Specifically, he contends that he is entitled to a 60 percent disability rating for his adjustment disorder (the Board notes that a 60 percent disability evaluation is not available under the applicable rating criteria). The Veteran's adjustment disorder is governed by 38 C.F.R. § 4.130 DC, 9440 which is rated under the general rating formula for mental disorders. As the Veteran is already rated at 50 percent, a 50 percent disability 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 worklike setting); inability to establish and maintain effective relationships. A total or 100 percent disability 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; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran received a mental health VA examination in April 2010. The Veteran indicated he had a strained relationship with his fiancé due to his depression and anxiety and believed that his monthly reserve duty was a root cause of his current issues with depression and anxiety. The Veteran endorsed symptoms of anxiety, depression, attention deficit hyperactive disorder (ADHD) of a mild to moderate severity and of variable duration. The examiner noted the Veteran's speech was unremarkable, with flattened affect, anxious and dysphoric mood, oriented, normal thought process, he denied delusions, and found the Veteran to be aware of the outcomes of his behavior. The Veteran reported poor sleep with occasional nightmares. The examiner also noted no hallucinations, no inappropriate behavior, no obsessive behaviors, no panic attacks, no suicidal or homicidal thoughts, poor impulse control, the ability to maintain hygiene and activities of daily living, and normal memory. The examiner diagnosed the Veteran with adjustment disorder with depression and anxiety and found that his symptoms were not severe enough to interfere with any occupational or social functioning. The Board notes that the VA examination provided a negative opinion as to service connection, which is not at issue here. However, the Board finds that the VA examination as to the Veteran's symptoms and severity is competent, credible, and with significant probative weight. In March 2013 the Veteran received another VA examination for mental disorders that noted the Veteran's diagnoses of dysthymia and PTSD that was aggravated by his military service. The examiner noted the Veteran's occupational and social impairment with reduced reliability and productivity. The examiner documented the Veteran's symptoms of depressed mood, anxiety, suspiciousness, sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and difficulty in establishing and maintaining effective work and social relationships. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran received a VA examination for PTSD in May 2014 that noted diagnoses of adjustment disorder with depression and anxiety, attention deficit disorder (ADD), and strong narcissistic and antisocial personality features. The examiner noted the Veteran's occupational and social impairment severity as mild or transient symptoms. The Veteran reported being fired or quitting from multiple jobs, a good relationship with his wife, that he got along with others but not connected to friends due to lack of interest, and that he was forced to attend anger management classes due to previous legal issues but found them useless. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD but continued to meet the diagnostic criteria for an adjustment disorder with depression and anxiety. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and an inability to establish and maintain effective relationships. The Veteran was found to have good hygiene, euthymic mood, an appropriate affect, normal speech, no symptoms of formal though disorder, reported intrusive thoughts of his deployment, and an intact memory. The Board finds that the VA examination is contradictory as noted in the December 2019 Board remand as the examiner notes symptoms of a higher disability rating but indicated occupational and social impairment of a much lower severity as documented by the Veteran's symptoms. As such the Board finds the May 2014 VA examination to be inadequate for VA purposes. Examiners are not able to make bare conclusions without factual predicate. See Miller v. West, 11 Vet. App. 345 (1998). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (medical examinations must contain a reasoned explanation connecting the conclusion with the supporting data). As indicated above the Board remand of December 2019 requested a new VA examination for the Veteran's adjustment disorder which he received in February 2021. The VA examination of February 2021 noted the Veteran's diagnosis of adjustment disorder with mixed anxiety and depression. The examiner noted the Veteran's occupational and social impairment severity with reduced reliability and productivity. The Veteran indicated that he had not taken any psychiatric medication since 2014, and he had no psychiatric hospitalizations or suicide attempts. The examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran was talkative but with normal speech, restricted affect, denied suicidal ideations, a generally logical though process but with some difficulty recalling details and conveying the point he wanted to make. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veterans VA treatment records indicated multiple mental health assessments and mental health doctor's notes throughout the Veteran's appeal period. The Veteran in October 2009 had a moderately severe depression screening and was diagnosed with mixed anxiety and depression, as well as with adjustment disorder with depressed and anxious mood. The Veteran was noted as being a low risk for suicide but could be a higher risk if his mental health issues were not addressed. In December 2009 the Veteran had a neuropsychology evaluation which noted the Veteran's logical thought processes, normal speech, anxious affect, denied suicidal ideations and homicidal ideations, and found his verbal output could be reduced due to depression. The evaluation diagnosed the Veteran with adjustment disorder with mixed features of depression and anxiety. A mental health note from January 2010 noted the Veteran's affect as moderately to mildly depressed, with no suicidal ideations, logical thought processes, and his speech somewhat slowed. A mental health note in October 2011 also noted the Veteran denying suicidal and homicidal ideations and he was seeing a private psychologist. A psychiatric and psychological assessment in July 2012 noted symptoms of ruminative thoughts, mood shifts, anger, anxiety, insomnia, and anhedonia. The Veteran was found to be oriented, normal speech, have an intact memory, no delusions, linear thoughts, with intact judgment, and fair insight. The Veteran was also noted as denying suicidal and homicidal ideations. Another doctor's note in July 2012 indicated the Veteran previously had passing suicidal thoughts while in service approximately in 2008 or 2009 but denied current thoughts or plans. In an October 2012 psychological assessment, the Veteran was noted as irritable with anxiety, but had organized thoughts, no delusions, no hallucinations, intact memory, good judgment, adequate insight, with an euthymic mood. In a November 2012 mental status check the Veteran indicated symptoms of anxiety, irritability, sleep issues, and was found to be a low risk for suicide. The Veteran was also noted as have fluent speech, was alert, with organized thoughts, intact memory, and good judgment. The Veteran in December 2013 received a psychological assessment that noted he was not happy with the label of a PTSD diagnosis and wanted anxiety instead. He was documented as oriented, alert, with normal speech, anxious mood with constricted range, reactive with a decrease in intensity as the assessment progressed, logical thoughts, denied audio and visual hallucinations, intact memory, no delusions, and fair insight and judgment. In November 2014 the Veteran was noted as reporting sleep issues, anxiety, and anger but not acting on it. He noted this increase since his move to a different state. In December 2014 the Veteran further indicated he continued to be socially isolated since moving, with persisting avoidance of socializing, and no suicidal or homicidal ideations. A February 2015 mental health assessment noted the Veteran's panic attacks, sleep issues, social isolation, and anger. The Veteran described his separation from his spouse in fall 2014 and move to another state without knowing anyone. The Veteran's affect was noted as constricted, with normal speech, no delusions, no hallucinations, good judgment, and denied suicidal and homicidal ideations. In September 2018 the Veteran was noted as denying thoughts of self-harm, indicated he was not currently on psychiatric medications, and was not interested in seeing anyone for help. In a July 2019 post-deployment health clinic doctor's note the Veteran indicated that his anger and irritability had gotten worse, he had begun throwing things, felt isolated socially and worked full time but had no social support. The Veteran indicated a remote history of suicidal ideations with no plan or intent, and no current suicidal ideation, plan, or intent. The Veteran endorsed symptoms of unwanted memories, memory issues, loss of interest, hypervigilant, concentration issues, sleep issues, irritability, and taking too many risks or doing things that could cause harm. In an October 2020 general examination, the Veteran denied suicidal and homicidal ideations. The Board finds the Veteran's treatment records to be competent, credible, and with significant probative weight. The Veteran submitted statements that indicated symptoms of memory issues and that he has intermittently illogical, obscure, and irrelevant speech, impulse control issues, issues adapting to stressful circumstances, and inability to maintain effective relationships. The Veteran also endorsed his neglect of personal hygiene and appearance by wearing clothes for more than 7 days in a row, shaving his head in lieu of getting a haircut, and not showering regularly which he noted could be overlooked due to the Veteran's "obsessive morning ritual that includes shaving." See NOD submitted June 2014. While the Board acknowledges the Veteran's competence to describe the current severity of his symptoms, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Board finds that the Veteran's adjustment disorder more closely approximates a 50 percent disability rating. The Veteran has been noted as having constricted and anxious affect and mood, impairments of memory, impairments in judgement, disturbances of mood and motivation such as being isolated and avoiding crowds, and suspiciousness. The Veteran also has been found to have difficulty establishing and maintaining effective work and social relationships as noted in his reported lack of friends and family connections. The Veteran's adjustment disorder does not meet the 70 percent disability rating requirements as he has reported no suicidal ideations, no obsessional rituals which interfere in routine activities, no finding of illogical or obscure speech, no continuous panic or depression that has been found to affect his ability to function, no spatial disorientation, and no inability to establish and maintain effective relationships. The Veteran has endorsed issues with personal appearance, hygiene, and impaired impulse control; however, these have either not been noted or been limited in the Veteran's medical treatment records. As such the Board finds that the Veteran's adjustment disorder more closely resembles a 50 percent disability rating. In this case, the Veteran's lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his adjustment disorder. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's condition, as well as the Veteran's VA treating physicians. For these reasons, greater evidentiary weight is placed on the examination findings and VA treatment records regarding the type and degree of impairment. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence does not support a higher evaluation for his adjustment disorder at any point during the appeal period. The Board also finds that a staged rating is not appropriate in this case. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran's claim for an initial evaluation in excess of 50 percent for an adjustment disorder is denied. Entitlement to an evaluation in excess of 20 percent, prior to and as of, January 28, 2014, for a back disability The Veteran contends that he is entitled to an earlier effective date for his 20 percent disability rating prior to January 28, 2014, and that he is entitled to a disability rating in excess of 20 percent as of January 28, 2014. Specifically, the Veteran contends that he is entitled to a 40 percent disability rating for his back disability. Earlier Effective Date Generally, the effective date of an award of disability compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. The earliest effective date for an increased rating for disability compensation is when based on all the evidence of record an increase in that disability has occurred that can be factually ascertainable, if a complete claim or intent to file a claim is received, or within one (1) year from that date, if not, then the date of receipt of the claim shall be the effective date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A review of the record shows that the Veteran while still in service filed an initial claim for entitlement to service connection for a back disability. The Veteran's initial claim was granted and he was granted service connection for a back disability at 10 percent disabling, effective May 21, 2009, in a September 2009 rating decision. The Veteran did not file a timely notice of disagreement (NOD) and the September 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The Veteran then filed an informal claim in January 2011 for an increased rating for his back disability which was denied in an April 2013 rating decision. The Veteran did not file a timely NOD and the April 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The Veteran filed a formal claim for an increased rating for his back disability in May 2014 and was granted an increased rating of 20 percent for his back disability with an effective date of January 28, 2014, the date of the intent to file a claim. The Board notes that the Veteran's representative indicated in the Statement of Accredited Representative in Appealed Case, VA Form 646 submitted October 2016, that the Veteran's date of claim was May 12, 2014, and does not include the Veteran's intent to file claim filed January 28, 2014. The Board will continue to utilize the more favorable date for the Veteran of January 28, 2014. The Board finds that after reviewing the record from the date of the claim and one-year preceding, January 27, 2014, to January 28, 2013, there is no factual basis for an increased rating from 10 percent to 20 percent. The Veteran throughout multiple VA examinations for different issues does not mention a worsening of his back disability. The VA examination for his back disability provided in March 2011 also indicated a 10 percent disability rating and no worsening for his back disability. The Veteran's VA treatment records in September 2013 noted the Veteran's statement of tenderness and muscle spasms. However, there is no indication of severity resulting in abnormal gait or abnormal spinal contour. The Veteran was found to have normal muscle strength and reflexes. The Veteran's claim of entitlement to an increased rating from 10 percent disabling to 20 percent disabling is not competent to designate a worsening to result in an increased rating as the Veteran does not have specialized education, training, or experience to determine the severity of his back disability. Additionally, the Veteran's VA treatment records provided no indication of a worsening or an indication of the requirements of a 20 percent disability rating prior to January 28, 2014, (see below of requirements of disability ratings for the Veteran's back disability pursuant to 38 C.F.R. § 4.71a). See VAMC Other Output/Reports submitted April 2014. Therefore, the date of receipt of the intent to file a claim, January 28, 2014, for increased rating is the appropriate effective date. Accordingly, the Board finds that the claim for an earlier effective date for a 20 percent disability rating prior to January 28, 2014, for a back disability is denied. Increased Ratings for Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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 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 diagnostic codes relevant to the rating of the Veteran's back disability are summarized below. For 38 C.F.R. § 4.71a DCs 5235 to 5241 there were no changes and all DCs were to be rated under the General Rating Formula for Diseases and Injuries of the Spine (hereinafter the General Rating Formula). Under DC 5242 (prior to the regulatory change on February 7, 2021) was to be rated under the General Rating Formula and indicated: degenerative arthritis of the spine (see also, diagnostic code 5003). Under DC 5242 (as of February 7, 2021, under the amended regulatory criteria) was to be rated under the General Rating Formula and indicated: degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010). Under DC 5003 the only change was the title of the DC. Prior to the regulatory change on February 7, 2021, the DC was titled Arthritis, degenerative (hypertrophic or osteoarthritis). As of February 7, 2021, the DC was titled Degenerative arthritis, other than posttraumatic. The rating requirements remained the same. DC 5003 indicates a requirement that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: A 10 percent disabling which requires x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent disability rating requires x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1): indicates the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): indicates the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Under DC 5010 (prior to the regulatory change on February 7, 2021) required arthritis: due to trauma, substantiated by x-ray findings: rate as arthritis, degenerative. Under DC 5010 (as of February 7, 2021, under the amended regulatory criteria) requires post-traumatic arthritis, rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. The Veteran's back disability, which is currently rated at 20 percent, disabling is governed by the provisions of 38 C.F.R. § 4.71a, DC 5242 which is rated under the General Rating Formula. The General Rating Formula indicates that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent disability rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent disability rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability; 5235 vertebral fracture or dislocation, 5236 sacroiliac injury and weakness, 5237 lumbosacral or cervical strain, 5238 spinal stenosis, 5239 spondylolisthesis or segmental instability, 5240 ankylosing spondylitis, 5241 spinal fusion, 5242 degenerative arthritis of the spine (see also diagnostic code 5003), and 5243 intervertebral disc syndrome (IVDS). Evaluate IVDS (preoperatively or postoperatively) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS Based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25 (2019). The Diagnostic Code (DC) for IVDS is not to be considered by the Board as the Veteran has not been diagnosed with IVDS at any time during the appeal period. See 38 C.F.R. § 4.71(a) DCs 5235 to 5243, Note (6). The Veteran received a VA examination in May 2014 for back conditions and muscle injuries. The back conditions VA examination noted the Veteran's diagnoses of degenerative arthritis of the spine and mild degenerative disc disease (DDD) of the thoracolumbar spine with scoliosis. The Veteran reported current symptoms of back spasms, muscle cramps daily with manual labor that developed a heat sensation over his entire back, pain in his lower left back intermittently occurring daily, and right mid back having the majority of spasms. The Veteran did not describe any radiating pain and reported no flares. The Veteran's initial range of motion (ROM) was measured with forward flexion at 0 to 70 degrees with painful motion at 50 degrees, extension at 0 to 30 degrees or greater with pain at 5 degrees, right and left lateral flexion at 0 to 30 degrees or greater with pain at 10 degrees, right lateral rotation at 0 to 10 degrees with pain at 10 degrees, and left lateral rotation at 0 to 30 degrees or greater with no painful motion. The Veteran's ROM after repetitive testing was found to be forward flexion at 0 to 60 degrees, extension at 0 to 30 degrees or greater, right and left lateral flexion and right lateral rotation at 0 to 10 degrees and left lateral rotation at 0 to 30 degrees. The Veteran was noted as having functional impairment with repetitive testing due to less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. The examiner noted muscle spasms with no abnormal gait or spinal contour, but noted guarding resulting in abnormal gait or abnormal spinal contour. The Veteran was found to have normal muscle strength, no muscle atrophy, hypoactive reflexes, a normal sensory examination, no radiculopathy, no ankylosis, and no IVDS. The examiner noted the Veteran's antalgic gait favoring the lower left extremity and then when he left the examination, he was favoring the right knee, and guarding during the examination despite distraction. The Veteran's thoracic arthritis was noted via x-rays. The examiner indicated the Veteran's back disability had a functional impact with difficulty standing prolonged periods or heavy lifting, and with his full-time employment of food prepping he had been told to function faster but had difficulty due to back pain. The examiner also noted that flare ups and repetitive use over time was not possible to determine as there was no direct observation under those conditions. The Veteran's muscle injuries VA examination found no diagnosis of muscle injury. The examiner noted normal muscle strength and no muscle atrophy. The examiner indicated that there was no separate muscle condition and found his muscle spasms were due to back pain and/or guarding. The examiner noted that in the back VA examination muscle spasms were included, and were visible bilaterally during his examination, but was not a separate muscle condition from his back disability. The Board finds that at the time of the back and muscle injuries VA examinations in May 2014, the case law of Sharp v. Shulkin, 29 Vet. App. 26 (2017) was not in effect. The case law in Sharp provides direction to adequately address functional loss or functional impairment of musculoskeletal disability the examiner must express an opinion as to whether pain could significantly limit functional ability and if possible provide a picture of that functional loss in terms of additional range of motion loss due to pain on use or during flare ups. The Board finds these isolated observations of repetitive use over time and flare ups to be inadequate, but the remainder of the VA examinations are competent, credible, and with significant probative weight. Based on the Board's December 2019 remand the Veteran received another VA examination for his back disability in March 2021 that noted the Veteran's DDD of the thoracolumbar spine with scoliosis and muscle spasms. The Veteran described his current symptoms as his back remaining tight all the time, and if the muscles were loosened via massage he would get more back pain with additional cramping, also a burning or ripping pain in his back, and when he sat or stood too long his back would become increasingly painful. The Veteran described his flare ups as if he sat or stood up too long he would have pain or pressure in his back, if he got a massage he would get a burning and radiating pain in his spine, the left side of his back cramped more which then caused increased pain to the right side of his back. The flare ups were described as occurring a couple times per week and when he got a massage once every month or two, lasting from a day to a week. The Veteran explained he experienced cramping, tightness, burning, and radiating pain down his spine with a severity of mild to moderate, but severe with a bad flare. The Veteran described the functional impact of his flare ups as causing him to not be too physically active, he could not lift objects, he could not sit at a desk for longer than 2 hours, but then could not stand longer than 30 minutes. The Veteran's active ROM was measured with forward flexion at 0 to 70 degrees, extension 0 to 30 degrees, right lateral flexion at 0 to 20 degrees, left lateral flexion at 0 to 15 degrees, right lateral rotation at 0 to 20 degrees, and left lateral flexion at 0 to 15 degrees. All of the ROM measurements were attributable to pain, weakness, fatigability, or incoordination. Passive ROM was found to be the same as active ROM with no crepitus. The examiner noted localized tenderness or pain on palpation with groaning, saying "ouch", and withdraws from touch with palpation of a severity of moderate to severe. The Veteran's repetitive use ROM showed no additional loss of function or ROM. The Veteran's repetitive use over time and flare ups showed evidence that pain, stiffness, and tightness significantly limited the Veteran's functional ability over time. His repetitive use over time and flare up ROM was measured with forward flexion at 0 to 60 degrees, extension, right lateral flexion, and right lateral rotation at 0 to 20 degrees and left lateral flexion and left lateral rotation at 0 to 5 degrees. The examiner noted that the Veteran's left side would hurt when sitting at his desk, and any leftward motion would increase pain. The Veteran was noted as having localized tenderness that did not result in abnormal gait or abnormal spinal contour, guarding that did not result in abnormal gait or abnormal spinal contour, and no muscle spasms. The examiner found that the Veteran's back disability interfered with sitting and standing, but he had normal muscle strength, no muscle atrophy, normal reflexes, a normal sensory examination, no radiculopathy, no ankylosis, no neurological abnormalities, no IVDS, and no vertebral fracturing. The examiner found that the Veteran's back disability caused functional impact with the inability to stand for more than 30 minutes at work and could not sit for longer than 2 hours at a time. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran's VA treatment records indicated the Veteran reporting muscle spasms in September 2013 along with an injury to his lower back due to yard work but did not provide whether the Veteran's gait was affected. The Veteran also reported back pain in November 2014 and March 2015, saying his back pain subsided with movement and sometimes interfered with sleep. In September 2018 the Veteran indicated he had chronic back pain but took nothing for relief and believed it was due to sitting at a computer for extended periods of time. In October 2020 the Veteran indicated that he had mild lumbar and thoracic pain and tenderness. The Board finds the Veteran's treatment records to be competent, credible, and with significant probative weight. The Veteran submitted statements of his back disability indicating in his NOD submitted June 2014, that his disability should be rated at 40 percent disabling as there was ankylosis of the entire thoracolumbar spine and fusion of the bones. The Veteran also indicated in his Substantive Appeal VA Form 9 submitted April 2016, that his back disability should be increased to 40 percent as his symptoms more closely matched the 40 percent rating and not the 30 percent rating. In this case, the Veteran's lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his back disability. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's condition. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence does not support a higher evaluation for the Veteran's back disability at any point during the appeal period. The Board also finds that a staged rating is not appropriate in this case. The Board recognizes the Veteran's reports of pain as competent and credible to the extent that they articulate the Veteran's belief that he is entitled to a higher rating and establishing the presence of observable symptoms, where the determination is not medical in nature. Barr v. Nicholson, 21. Vet. App. 303 (2007). However, the Veteran's statements are not competent as to determine the severity of his back disability as there is no evidence, he has specialized education, training, or experience. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Board in this decision has considered both the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a prior to and as of the regulatory changes effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The more favorable rating criteria have been applied and neither result in an increased rating for the Veteran's back disability during the appeal period. The Board finds that the Veteran's back disability more closely resembles a 20 percent disability rating. The Veteran's back disability continued to manifest as 20 percent disabling as the Veteran's forward flexion of the thoracolumbar spine was found to be greater than 30 degrees but not greater than 60 degrees, or he continued to have a combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 degrees, or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes that the Veteran's May 2014 VA examination found abnormal gait and the March 2021 VA examination found forward flexion at 0 to 60 degrees. As such the Veteran has not met the disability rating of 30 percent as it only addresses the cervical spine which is not at issue here. The Veteran also has not met the disability rating requirements of a 40 percent disability rating as his thoracolumbar ROM for forward flexion was never measured at 30 degrees or less, and the Veteran has never been found to have ankylosis. The Veteran also did not have evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes nor any specified instability under the affected joint as there are not 2 or more joints affected. Additionally, there is no additional ROM measurement that would result in a higher rating, nor any dislocation, or instability of the Veteran's back disability that would result in a higher disability rating. See 38 C.F.R. § 4.71a, DCs 5003, 5010, 5424. The Board finds that based on consideration of the General Rating Formula, degenerative arthritis, and post-traumatic arthritis, the Veteran is not entitled to an increased rating for his back disability. The Board has also considered the Veteran's pain on movement due to his back disability for the period on appeal and finds that his symptomatology more closely approximates a 20 percent disability rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003, 5010, 5242; see also Deluca v. Brown, 8 Vet. App. 202 (1995). Further, the additional limitation that he experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition and during flare-ups was accounted for by the VA examiner when determining the Veteran's range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. Thus, the preponderance of the evidence is against a finding that the Veteran is entitled to an increased rating for his back disability. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 20 percent. As such, the Veteran is not entitled to a disability rating in excess of 20 percent for his back disability prior to and as of January 28, 2014. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5242. Therefore, the Veteran's claim of entitlement to an evaluation in excess of 20 percent, prior to and as of, January 28, 2014, is denied. Entitlement to a TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. After a thorough review of the evidence, the Board concludes that an award of a TDIU is not warranted. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran was already service connected for an adjustment disorder at 50 percent disabling, effective May 2009, a back disability at 10 percent disabling, effective as of May 2009, which was then increased to 20 percent disabling, effective January 2014, and tinnitus at 10 percent disabling, effective May 2009. The Veteran has not met the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Veteran's adjustment disorder is rated at 50 percent disabling, and the combined rating of the remaining service-connected disabilities is not 70 percent or more and fails to meet the criteria for a schedular TDIU as per 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.25. The Board also notes that throughout the appeal period the Veteran was working different jobs, was a fulltime student, and received training for information security through VA. In July 2019, the Veteran indicated he was working full time in information technology (IT). See CAPRI records submitted August 2020. In his February 2021 VA examination he indicated he worked as of February 2020 doing IT security, left his job to move closer to his child, but was also focused on his career. Additionally, in his March 2021 VA examination he indicated that his lumbar disability made it hard to sit for long periods of time at work. (CONTINUED NEXT PAGE) In sum, while the record reflects that the Veteran's service-connected disabilities cause difficulties at work, unemployability due to these disabilities, alone, has not been shown as evidenced by the Veteran's statements and work history. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an award of a TDIU must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.