Citation Nr: 22004635 Decision Date: 01/27/22 Archive Date: 01/27/22 DOCKET NO. 20-19 202 DATE: January 27, 2022 ORDER A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with symptoms of traumatic brain injury (TBI), is denied. A disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD) with ulcerative colitis on a schedular basis is denied. A disability rating in excess of 10 percent for thoracic strain prior to October 21, 2021, is denied. A 40 percent disability rating from October 21, 2021, for thoracic strain is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD) with ulcerative colitis on an extraschedular basis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the appellate period, the Veteran's PTSD with symptoms of TBI has not been manifested by total impairment in any of the facets of TBI nor total occupational and social impairment. 2. During the appellate period, the Veteran's GERD with ulcerative colitis has not been manifested by severe symptoms with numerous attacks a year and malnutrition, with the Veteran's health being only fair during remissions; nor symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 3. For the period prior to October 21, 2021, the Veteran's thoracic strain has been manifested by forward flexion limited to, at worst, 65 degrees and symptoms including painful motion and pain on palpation of the thoracolumbar spine. 4. For the period from October 21, 2021, the Veteran's thoracic strain has been manifested by forward flexion limited to, at worst, 30 degrees and symptoms including painful motion and pain on palpation of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD with symptoms of TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, 4.130, Diagnostic Codes 8045, 9411. 2. The criteria for a schedular disability rating in excess of 30 percent for GERD with ulcerative colitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Codes 7323, 7346. 3. For the period on appeal prior to October 21, 2021, the criteria for a disability rating in excess of 10 percent for thoracic strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5237. 4. For the period on appeal from October 21, 2021, the criteria for a 40 percent disability rating for thoracic strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to July 2010. During his period of service. He earned the Combat Action Ribbon (Afghanistan), Marine Corps Good Conduct Medal, Sea Service Deployment Ribbon with one Star, Afghanistan Campaign Medal with one Campaign Star, Global War on Terrorism Expeditionary Medal (Kuwait), Global War on Terrorism Service Medal, National Defense Service Medal, Navy Unit Commendation, North Atlantic Treaty Organization (NATO) MedalInternational Security Assistance Force (ISAF), Letter of Appreciation, Certificate of Appreciation, and Rifle Expert Badge (3rd Award). A December 2017 rating decision denied entitlement to a compensable disability rating for post concussive headaches. The December 2017 denial was confirmed and continued by an August 2018 rating decision. The Veteran filed a timely notice of disagreement (NOD) in August 2019 with respect to entitlement to a compensable disability rating for post concussive headaches. An increased 30 percent disability rating was awarded by a September 2019 rating decision. A statement of the case (SOC) was issued in September 2019 addressing the issue of entitlement to a disability rating in excess of 30 percent for migraine, including migraine variants. The Veteran did not perfect this appeal by filing a timely substantive appeal (e.g., VA Form 9 or equivalent) after the SOC; thus, the issue is not before the Board for adjudication. As such, the only issues that remain on appeal are those listed on the cover page of this decision. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD with symptoms of TBI The Veteran asserted that he was entitled to a rating in excess of 70 percent for his service-connected PTSD with symptoms of TBI. The Veteran's disability is evaluated under Diagnostic Code 8045-9411. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from a TBI: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" (the Table) addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms and provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, as well as a fifth level, the highest level of impairment, labeled "total." These facets include memory, attention, concentration and executive function, judgment social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. A level 0 impairment is consistent with a 0 percent disability rating, level 1 with a 10 percent disability rating, level 2 with a 40 percent disability rating, level 3 with a 70 percent disability rating, and the highest level ("total") with a 100 percent disability rating. When a veteran displays subjective symptoms, such symptoms should be applied to the Table, unless the symptoms may be evaluated under another diagnostic code. For example, if there are any emotional or behavioral symptoms that have been clinically diagnosed, such symptoms should be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Similarly, if the residuals of the TBI include other diagnosable symptoms such as (but not limited to) motor and sensory dysfunction, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, or any other disorders, they should be evaluated under the appropriate diagnostic code, and then combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The current version of Diagnostic Code 8045 contains the following relevant notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Under Diagnostic Code 9411, a 70 percent rating is warranted where there is 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 100 percent rating is warranted where there is 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. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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." The Veteran appeared for a VA residuals of traumatic brain injury examination in November 2017. The examiner noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The Veteran reported that he could not remember his agenda for the day nor tasks at work. Judgment was mildly impaired. For complex or unfamiliar decisions, the Veteran was occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. The Veteran reported that he was impulsive with decisions. Social interaction was occasionally inappropriate. The Veteran reported that he got angry with friends. The Veteran was occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. The Veteran reported that he forgets where he is at times and forgets what day it is. Motor activity was normal. Visual spatial orientation was mildly impaired. The Veteran occasionally got lost in unfamiliar surroundings and had difficulty reading maps or following directions. He was able to use assistive devices such as GPS (global positioning system). The Veteran expressed that he got lost driving in his own town. The Veteran's TBI was manifested by three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family or other close relationships. He reported daily headaches, mild anxiety, dizziness, and insomnia. The Veteran's TBI was also manifested by one or more neurobehavioral effects that frequently interfered with workplace interaction, social interaction, or both but do not preclude them. The Veteran reported verbal aggression, moodiness, inflexibility, and impulsiveness. He stated that he drove places without planning. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. The examiner noted the Veteran had both confirmed TBI and PTSD. The examiner indicated it was impossible to specify without conjecture which symptoms were attributable to which condition. The Veteran appeared for a VA PTSD examination in December 2017. The examiner indicated that the Veteran's level of occupational and social impairment could be best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner explained that it was not possible to differentiate what portion of the Veteran's occupational and social impairment was caused by TBI, as the symptoms of the disorders and their resulting impairment overlapped significantly; thus, the examiner could not determine their individual impact without resorting to mere speculation. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; impaired judgment; 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 work-like setting; impaired impulse control, such as unprovoked irritability with periods of violence. The examiner explained that it was not possible to differentiate what portion of the Veteran's occupational and social impairment was caused by the TBI, as the symptoms of the Veteran's PTSD and TBI, and their resulting impairment, overlapped significantly; thus, he was unable to determine their individual impact without resorting to mere speculation. The medical evidence also includes VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. Based on the foregoing, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 70 percent for PTSD with symptoms of TBI for any period of time during the pendency of the claim. A 70 percent rating is the highest available for TBI other than for total impairment. While the evidence supports a finding of memory, attention, concentration, and executive function deficits; impaired judgment; impaired social interactions; orientation deficits; and visual spatial impairment, the evidence does not support a finding of total impairment in any of the facets of TBI. Moreover, the treatment records and VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent. Rather, while the evidence of record demonstrates significant impairment in occupational and social functioning, it does not show total occupational and social impairment to warrant an increased rating of 100 percent. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There was no evidence of 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. Further, a separate disability rating for the Veteran's TBI is not warranted, as the symptoms exhibited cannot be separated from his symptoms of PTSD and rating based on the PTSD criteria results in a higher rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8045; 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, the criteria for a rating in excess of 70 percent for PTSD with symptoms of TBI have not been, and the claim is denied. GERD with Ulcerative Colitis on Schedular Basis The Veteran asserted that he was entitled to a rating in excess of 30 percent for his service-connected GERD with ulcerative colitis. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is prohibited when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. The United States Court of Appeals for Veteran's Claims has held that a veteran may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. With regard to coexisting abdominal conditions, VA regulation recognizes that 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. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Id. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under 38 C.F.R. § 4.114, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. Here, the Veteran's gastrointestinal conditions are grouped and rated pursuant to Diagnostic Code 7323. The Board will consider all applicable Diagnostic Codes. The Board notes that ulcerative colitis is rated under Diagnostic Code 7323, and both GERD and hiatal hernias are rated under Diagnostic Code 7346. By way of background, service connection for ulcerative colitis was initially granted by a December 2017 rating decision, at which time a 30 percent rating under Diagnostic Code 7323 was assigned, effective July 7, 2017. An April 2020 rating decision granted entitlement to service connection for gastroesophageal reflux disease and recharacterized the issues as a single disability of gastroesophageal reflux disease with ulcerative colitis. The disability is currently rated 30 percent disabling under Diagnostic Code 7346-7323, effective February 6, 2020. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 7323, a 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 rating is warranted for severe symptoms with numerous attacks a year and malnutrition, with the Veteran's health being only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323. Diagnostic Code 7346 provides that a 30 percent rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. A 60 percent rating is warranted for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran appeared for a VA intestinal conditions examination in October 2017. He reported on and off diarrhea with blood in the stool, excruciating abdominal pain, occasional nausea, and vomiting. The examiner noted that continuous medication was required for the control of the Veteran's intestinal condition. The Veteran reported that he was taking one Mesalamine enema daily, as well as four (4) 250 milligram Mesalamine capsules every six hours. He also reported that he was on a controlled diet. The VA examiner noted symptoms that included episodes of exacerbations and/or attacks of the intestinal condition characterized by episodes of chronic diarrhea and excruciating abdominal pain. The examiner also noted weight loss attributable to his condition. The Veteran next appeared for a VA intestinal conditions examination in January 2018. The examiner noted that continuous medication was required for the control of the Veteran's intestinal condition. The Veteran reported that he was taking mesalamine and prednisone. The VA examiner noted symptoms that included diarrhea, abdominal distension, nausea, and vomiting. The Veteran also reported episodes of bowel disturbance with abdominal distress characterized as more or less constant abdominal distress and episodes of exacerbations and/or attacks of the intestinal condition characterized by severe abdominal pain, nausea, bloating, blood in stool, diarrhea, and multiple times in the bathroom for extended periods. The Veteran most recently appeared for a VA esophageal conditions examination in March 2020. The Veteran reported daily heartburn with a sour taste in his mouth. He experienced vomiting and difficulty sleeping when not on medication. He also reported having to leave work approximately twelve times in the year prior to examination due to vomiting. The examiner noted that continuous medication was required for the control of the Veteran's intestinal condition. The Veteran reported daily use of antacid. The examiner noted symptoms to include pyrosis, reflux, regurgitation, and substernal pain. The examiner also noted four or more occurrences of sleep disturbance caused by esophageal reflux, nausea, and vomiting per year, with each episode lasting less than one day. Based on the foregoing, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 30 percent for any period of time during the pendency of the claim under Diagnostic Code 7323. The preponderance of the evidence demonstrates that the Veteran has not been shown to have severe symptoms with numerous attacks a year and malnutrition, with the Veteran's health being only fair during remissions. See 38 C.F.R. § 4.114, Diagnostic Code 7323. Further, there is no indication, either by the medical evidence or from the Veteran's statements, that he experiences material weight loss and hematemesis or melena with moderate anemia. Thus, while the Veteran's gastrointestinal condition certainly has been shown to be productive of pain and vomiting, the evidence does not show that his conditions more nearly approximate a combination of symptoms productive of severe impairment of health. A higher 60 percent rating under Diagnostic Code 7346 is not warranted. Although some diagnostic codes for the digestive system allow for higher disability ratings, there is nothing to suggest that the symptoms associated with the Veteran's service-connected GERD with ulcerative colitis is manifested by symptomatology that would warrant a higher rating under those pertinent diagnostic code. The evidence of record does not reflect that the Veteran has injuries of the lips; loss of whole or part of the tongue; stricture, spasm, or acquired diverticulum of the esophagus; adhesions of the peritoneum; gastric, duodenal, or marginal ulcer; hypertrophic gastritis; postgastrectomy syndrome; stenosis or residuals of injury to the stomach; residuals of injury of the liver; cirrhosis of the liver; chronic cholecystitis; chronic cholelithiasis; injury or removal of gall bladder; irritable colon syndrome; amebiasis; bacillary dysentery; intestinal or hepatic distomiasis; chronic enteritis; chronic enterocolitis; diverticulitis; resection of the small intestine; resection of the large intestine; fistula of the intestine; tuberculous peritonitis; impairment of sphincter control of the rectum and anus; stricture of rectum and anus; prolapse of the rectum; fistula in ano; external or internal hemorrhoids; pruritus ani; inguinal, ventral, or femoral hernia; marked symptomatic visceroptosis; malignant neoplasms of the digestive system; chronic liver disease; pancreatitis; vagotomy; liver transplant; or hepatitis C; therefore, Diagnostic Codes 7201-7205, 7301, 7304 to 7312, 7314 to 7319; 7321 to 7322; 7324 to 7340, 7342 to 7348, 7351, and 7354 do not apply. Accordingly, the criteria for a schedular rating in excess of 30 percent for GERD with ulcerative colitis have not been, and the claim is denied. Thoracic Strain The Veteran asserted that he was entitled to a rating in excess of 10 percent for his service-connected thoracic strain. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran's service-connected thoracic strain is evaluated under Diagnostic Code 5237, applicable to lumbosacral or cervical strain. See 38 C.F.R. § 4.71a. 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). However, the criteria for Diagnostic Code 5237 pertaining to lumbosacral strain were not revised. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, ankylosis is defined as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a at Note (5). Moreover, 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 for the thoracolumbar spine is 240 degrees. Id. at Note (2). The criteria under the General Rating Formula for Diseases and Injuries of the Spine are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The Veteran appeared for a VA back conditions examination in October 2017. The Veteran reported chronic, intermittent exacerbation of mid-back pain. He also reported continuous throbbing discomfort and intermittent sharp mid-back pain. The Veteran reported experiencing flare-ups described as excruciating mid-back pain for which he sought medical attention. The flare-ups were noted to occur four times a year and lasting for a duration of two weeks. Range of motion showed forward flexion ranged from 0 to 85 degrees. Extension ranged from 0 to 25 degrees. Pain was noted on forward flexion, but it did not result in or cause functional loss. There was objective evidence of mild to moderate localized tenderness or pain on palpation of the mid-back region. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was not conducted immediately after repeated use over time nor during a flare-up. The examiner noted that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repeated use over time or during flare-ups. The examiner was unable to state whether pain, weakness, fatigability nor incoordination significantly limited the Veteran's functional ability with repeated use over time or flare-ups without resorting to mere speculation, as there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Veteran next appeared for a VA back conditions examination in January 2018. The Veteran reported experiencing flare-ups described as difficulty lifting his child, inability to work out or run distances, difficulty bending for extended periods, and inability to lift objects. The Veteran also reported difficulty sleeping at night. Range of motion showed forward flexion ranged from 0 to 70 degrees. Extension ranged from 0 to 30 degrees. Pain was noted on forward flexion, but it did not result in or cause functional loss. There was objective evidence of mild pain on palpation of the lumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was not conducted immediately after repeated use over time nor during a flare-up. The examiner noted that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time nor during a flare-up. The examiner noted that pain and lack of endurance significantly limited the Veteran's functional ability with repeated use over time and during a flare-up; however, the examiner was unable to describe the functional loss in terms of range of motion, as the examiner was not able to quantify the loss and the Veteran was not being examined during repeated use over time nor during a flare-up. The Veteran appeared for a VA back conditions examination in May 2021. The Veteran reported constant tight, aching, low back pain that was described as moderate in nature and a four on a scale of ten. He also reported that his disability was aggravated by back movements, prolonged sitting for more than 15 minutes, standing for more than 20 minutes, bending, lifting more than 30 lbs. of weights, walking more than half a mile, and running more than half a mile. His low back pain was alleviated by rest, stretching, hot pad, massage, physical therapy, over-the-counter pain medication, and lidocaine patches. The Veteran reported experiencing flare-ups described as severe. They typically occurred once or twice a week and lasted for one to two days. Range of motion showed forward flexion ended at 65 degrees. Extension ended at 20 degrees. Pain was noted on forward flexion and extension, but it did not result in or cause functional loss. There was objective evidence of mild localized tenderness or pain on palpation of the right paraspinal muscles. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was not conducted immediately after repeated use over time nor during a flare-up. The examiner noted that pain significantly limited the Veteran's functional ability with repeated use over time and during a flare-up. Described in terms of range of motion, forward flexion ended at 65 degrees and extension ended at 20 degrees with repeated use over time and flare-ups. Additional factors contributing to disability included disturbance of locomotion, interference with sitting, and interference with standing. The Veteran reported regular use of a back brace for locomotion. The Veteran most recently appeared for a VA back conditions examination in October 2021. The Veteran reported constant, dull, aching, and throbbing thoracolumbar back pain that was described as a three on a scale of ten. He also reported that his disability was aggravated by prolonged sitting and walking, lifting, carrying, and rotational movements. His back pain was treated by epidural, physical therapy, and ibuprofen. As to functional impairment, the Veteran reported difficulty lifting his children and an inability to train weight train or run. Range of motion showed forward flexion ended at 30 degrees. Extension ended at 20 degrees. Pain was noted on forward flexion and extension. Range of motion itself contributed to decreased flexion. There was objective evidence of mild localized tenderness or pain on palpation of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was not conducted immediately after repeated use over time. The examiner noted that pain, fatigability, and lack of endurance significantly limited the Veteran's functional ability with repeated use over time. Described in terms of range of motion, forward flexion ended at 30 degrees and extension ended at 20 degrees with repeated use over time. The examiner noted muscle spasm that resulted in abnormal gait or abnormal spinal contour. The examiner noted that the magnetic resonance imaging (MRI) revealed "straightening of normal lumbar lordosis." The medical evidence includes VA treatment records, which are consistent with the VA examination reports of record. After review of the competent medical evidence, the Board finds that the evidence is against finding that the Veteran's service-connected thoracic strain warrants a disability rating in excess of 10 percent for the period on appeal prior to October 21, 2021. This evaluation is consistent with the medical evidence of record, which fails to show that forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees or that he suffered from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour to warrant an increased rating at any time prior to October 21, 2021. The Veteran's thoracolumbar spine motion has been limited to, at worse, 65 degrees on forward flexion. Thus, this finding does not meet the criteria for a rating in excess of 10 percent for thoracic strain. Although the Board finds the Veteran's assertions as to the severity of his symptoms to be credible, these reports alone do not warrant the assignment of an increased disability rating. Without evidence of greater limitation of motion, muscle spasm, or guarding of the thoracolumbar spine, the Board cannot grant an increased disability rating for the period prior to October 21, 2021. However, the evidence supports the assignment of a 40 percent disability evaluation for service-connected thoracic strain from October 21, 2021. The Veteran's October 2021 examination report shows his forward flexion ended at 30 degrees. Thus, a 40 percent rating is warranted as of the date of the examination. The Board notes that this is the earliest ascertainable date upon which the Veteran's thoracic spine disability met the criteria for the 40 percent rating. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). A rating in excess of 40 percent is not warranted during this period, as there have been no reports of unfavorable ankylosis of the entire thoracolumbar spine, as required for a higher schedular rating. A rating in excess of 40 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243, as there have been no findings of intervertebral disc syndrome (IVDS) on examination. For these reasons, the Board finds that a disability evaluation in excess of 40 percent for thoracic strain is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. The Board has considered the totality of the symptoms of the Veteran's thoracic spine disability and they have been factored into the Board's decision to continue the Veteran's 10 percent disability rating for the period prior to October 21, 2021 and grant a 40 percent disability rating for the period from October 21, 2021. Even considering DeLuca, while the Veteran complains of flare-ups and pain in his thoracolumbar spine that limits day-to-day and work activities, the Veteran's symptoms have been considered in the ratings above and indeed are part and parcel of the ratings that he is currently assigned. DeLuca, supra. Accordingly, the criteria for a rating in excess of 10 percent prior to October 21, 2021, for a thoracic strain have not been, and the claim is denied. However, beginning October 21, 2021, the criteria for a 40 percent rating for a thoracic strain have been met, and the claim is granted. REASONS FOR REMAND Regarding the Veteran's increased rating claim for GERD with ulcerative colitis, where a service-connected disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, an extraschedular evaluation may be assigned. 38 C.F.R. § 3.321(b). Such consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Director of Compensation Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. By an April 2021 correspondence, the Veteran's attorney requested extraschedular consideration for the Veteran's service-connected GERD with ulcerative colitis, as the Veteran's symptoms cause occupational impairment or endangers the Veteran's job. Specifically, at the time of the January 2018 examination, the examiner opined that the Veteran's condition impacted his ability to work, as he was not able to work when having a flare up due to pain, nausea, bleeding, and need to be in the bathroom. Further, at the time of the March 2020 examination, the examiner opined that the Veteran's condition impacted his ability to work, as the symptoms precluded concentration or ability to perform tasks that require sustained focus when symptomatic. Moreover, the examiner opined that the symptoms may result in increased absenteeism. The Veteran also reported having to leave work approximately twelve times in the year prior to examination due to vomiting. In light of this evidence, the Board finds that the matter must be referred to the Under Secretary for Benefits or the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Finally, the Veteran's claim of entitlement to TDIU is inextricably intertwined with the issue addressed above and will be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Refer the Veteran's case to VA's Director of Compensation Service for extraschedular consideration of his claim of entitlement to an increased rating for GERD with ulcerative colitis, pursuant to 38 C.F.R. § 3.321(b)(1). (Continued on the next page) 2. Thereafter, the AOJ must adjudicate the Veteran's claim of entitlement to a TDIU. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.