Citation Nr: 1803748	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-02 065	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a skin disability, to include tinea corporis.  

2.  Entitlement to an initial rating in excess of 10 percent for left lower extremity reflex sympathetic dystrophy (RSD).  

3.  Entitlement to an initial rating in excess of 10 percent for right peroneal nerve RSD, excluding periods for which a temporary total rating has been assigned under 38 C.F.R. § 4.30. 

4.  Entitlement to an initial compensable evaluation for painful intercourse and decreased libido with hypesthesia.  

5.  Entitlement to an initial compensable rating for migraine headaches from September 21, 2011 and a rating in excess of 30 percent since December 9, 2015.  

6.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 1, 2011.  

7.  Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) prior to September 1, 2011.  

8.  Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance (A&A) of another or housebound (HB) status, due to service-connected disabilities.  


REPRESENTATION

Appellant represented by:	Kathy A. Leiberman, Esq.


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran served on active duty from June 2000 to December 2003.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Offices (ROs).  

Historically, in pertinent part, a September 2012 rating decision granted service connection for left lower extremity RSD at a noncompensable level and denied an increased rating for a midline low back scar and service connection for a skin disability.  

A January 2013 rating decision assigned a temporary total rating for right peroneal nerve RSD, and assigned a rating of 10 percent.  A February 2014 rating decision denied entitlement to a TDIU rating.  

A September 2015 Board decision granted service connection for (a) headaches, (b) sleep disturbance, (c) painful intercourse and decreased libido and (d) a bilateral hip condition, but denied service connection for acid reflux.  That decision upheld a reduction from 10 percent to a noncompensable rating for the Veteran's left hip scar, and denied a rating greater than 20 percent for right leg pain due to Achilles tendonitis, denied a compensable rating for residuals of a right second toe surgery, and denied a temporary total rating for treatment requiring convalescence based on a March 26, 2008 surgery.  

In September 2015 the Board remanded issues of service connection for a skin condition, higher ratings for mid back scar and RSD of both lower extremities, and entitlement to a TDIU rating.  At that time it was noted that issues had been raised of service connection for a disability characterized by voiding dysfunction and entitlement to a separate compensable rating for a right Achilles scar.  

A March 2016 rating decision effectuated the grant of service connection for a sleep disorder, characterized as insomnia with adjustment-depressive disorder, which was assigned an initial noncompensable evaluation, effective September 1, 2011, and a 50 percent rating effective November 24, 2015.  It also granted service connection for painful intercourse and decreased libido with hypesthesia and assigned an initial noncompensable rating.  It also effectuated the grants of service connection for a strain of each hip (right and left), with each assigned an initial 10 percent rating.  All the foregoing were made effective September 1, 2011.  Service connection for migraines was effectuated with an initial noncompensable evaluation assigned from September 21, 2011 and a 30 percent rating from December 9, 2015.  Also, a TDIU rating was granted as well as basic eligibility to Dependents' Educational Assistance (DEA), all from September 1, 2011.   

In September 2016 the Board noted that the issue of an increased rating for painful scars was initially certified on appeal as entitlement to a compensable rating for a midline lower back scar, associated with a neuro-stimulator implant, and remanded as such by the Board in September 2015.  At that time the Veteran was also service-connected for a left iliac crest scar, associated with a neuro-stimulator implant.  Following a December 2015 VA examination, a March 2016 rating decision re-characterized the issue as entitlement to an increased rating for scars of the midline lower back, left iliac crest and right iliac crest, associated with a neuro-stimulator implant (previously evaluated separately as non-painful stable scars).  The ratings for all of the scars associated with the neuro-stimulator implant were combined into a single disability under Diagnostic Code 7804 (based on the number of painful or unstable scars present) and an increase was granted to ratings of 20 percent prior to December 9, 2015 and of 30 percent thereafter for the scars associated with the neuro-stimulator implant.  The Board in September 2016 denied ratings greater than 20 percent prior to December 9, 2015 and greater than 30 percent thereafter for the scars associated with the neuro-stimulator implant.   

The September 2016 Board decision noted that a TDIU rating had been awarded effective September 1, 2011 but that the claim for an increased rating for left lower extremity RSD stemmed from an April 2011 claim for service connection.  As that was the date of claim for the increased rating, and the Veteran attributed her inability to work in part to her left leg RSD, and because the TDIU claim was part and parcel of the increased rating claim, the TDIU claim predated the assigned September 1, 2011 date for a TDIU rating.  Thus, the issue of entitlement to TDIU prior to September 1, 2011 was still on appeal.  

In September 2016 the Board found that the claim for SMC was inferred anytime a Veteran sought an increase evaluation, citing Akles v. Derwinski, 1 Vet. App. 118 (1991).  That matter was remanded to the RO for the issuance of notice of how to substantiate a claim (which was subsequently contained in a January 2017 RO letter) and any development deemed necessary, to include an examination is necessary.  

The Veteran was notified of a March 2016 rating decision by letter of March 22, 2016.  Received on March 7, 2017 (within one year of that notification) was VA Form 21-0958, Notice of Disagreement (NOD) in which the Veteran's attorney expressed disagreement with the initial noncompensable evaluation assigned for painful intercourse and decreased libido with hypesthesia; the evaluations for migraine headaches as noncompensable from September 21, 2011 and as 30 percent since December 9, 2015; and the effective date of September 1, 2011 for a TDIU rating and basic eligibility to Dependents' Educational Assistance.  A Statement of the Case (SOC) was sent in June 2017 as to these issues and the appeal was perfected by filing VA Form 9 in August 2017 (in which a hearing was not requested.   

An August 2017 rating decision denied SMC based on the need for the regular A&A of another or HB, due to service-connected disabilities.  A Supplemental SOC in August 2017 addressed service connection for a skin condition, ratings for RSD of each lower extremity, an earlier effective date for a TDIU rating, and SMC based on the need for the regular A&A of another or HB, due to service-connected disabilities.  

In a letter dated August 12, 2016 the attorney alleged that a separate rating should be assigned for skin symptoms of the Veteran's feet due to service-connected RSD of the legs; however, this matter is addressed in the claim for service connection for a skin disability.  In VA Form 9 in January 2015 the Veteran's attorney stated that the evidence indicated that the Veteran had voiding dysfunction and an examination was requested to determine the etiology of such.  Although service-connected for a disorder manifested by painful intercourse and decreased libido with hypoesthesia (the initial rating for which is addressed herein) service connection is not in effect for voiding dysfunction.  In VA Form 9 in August 2017 a claim was set forth for SMC for loss of use of a creative organ.  The matters of service connection for a disorder manifested by voiding dysfunction and to SMC for loss of use of a creative organ have not been adjudicated and, so, the Board does not have jurisdiction and these matters are referred to the RO.  

This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents).  Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records.   

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a TDIU rating prior to September 1, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  

In light of the remand of the issue of entitlement to a TDIU rating prior to September 1, 2011, the claim for to basic eligibility to DEA prior to September 1, 2011 must be deferred.  


FINDINGS OF FACT

1.  The Veteran had an acute episode of urticarial during service which has not recurred and she develop postservice recurring but not chronic tinea corporis which is a fungal infection that is unrelated to her military service and to any service-connected disability.  

2.  The Veteran's left lower extremity RSD is not productive of more than moderate impairment of the anterior tibial, i.e., deep peroneal, nerve.  

3.  The Veteran's right lower extremity RSD is not productive of more than moderate impairment of the anterior tibial, i.e., deep peroneal, nerve.  

4.  The Veteran has reported having pain in her hips during intercourse but not actually painful intercourse; she does not have decreased libido or any genitourinary pathology; and her service-connected strains of the hips are each rated 10 percent disabling.  

5.  Prior to December 9, 2015, the Veteran's headaches were controlled with medication and she did not have characteristically prostrating headache; and since December 9, 2015, she has not had very frequent completely prostrating and prolonged attacks causing severe economic inadaptability.  

6.  The Veteran's service-connected disabilities do not require the regular aid and attendance of another and to not cause her to be housebound.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a skin disability, to include tinea corporis, are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2017).  

2.  The criteria for an initial rating in excess of 10 percent for left lower extremity RSD are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8621 (2017).  

3.  The criteria for an initial rating in excess of 10 percent for right peroneal nerve RSD, excluding periods for which a temporary total rating has been assigned under 38 C.F.R. § 4.30, are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.20, 4.27, 4.123, 4.124, Diagnostic Code 8621 (2017).  

4.  The criteria for an initial compensable evaluation for painful intercourse and decreased libido with hypesthesia are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.21, 4.27, 4.116, Diagnostic Code 7611 (2017).  

5.  The criteria for an initial compensable rating for migraine headaches from September 1, 2011 and a rating in excess of 30 percent since December 9, 2015 are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124, Diagnostic Code 8100 (2017).  

6.  The criteria for SMC based on the need for the regular A&A of another or HB status, due to service-connected disabilities, are not met.  38 U.S.C.A. §§ 1114, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development.  The Board finds that that requirement of notice was met through correspondence sent to the Veteran during the course of the adjudication process, and particularly a notification letter of January 4, 2014 as to the claim for service connection for a skin disorder, and as to claims for increased ratings by letters in December 2013 and January 4, 2017.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Moreover, to the extent that the Veteran is appealing initial disability ratings which have been assigned the statutory notice for the claims for service connection for these disorders has served its purpose, its application was no longer required as to the downstream elements of the initial ratings for the service-connected disorders or the effective dates for a TDIU rating and basic eligibility to DEA.  See Dingess/Hartman, 19 Vet. App. at 473, 484-86, aff'd, 483 F.3d at 1311; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

As to the duty to assist, the Veteran declined to testify in support of her claims but her service treatment records (STRs) are on file, as are VA and private treatment records and records from the Social Security Administration (SSA).  Moreover, the Veteran has been afforded VA examinations as to her claim for service connection for a skin disorder and as to the severity of the service-connected disorders for which increased compensation is sought.  It has been contended that a 2012 VA neurology examination is inadequate for rating purposes because it did not identify the affected nerves.  It was for this reason that these increased rating claims were remanded and subsequent examinations were conducted, including as recently as a 2017 which specifically identified the affected nerves.  

The Board finds that there has been substantial compliance with the Board remands.  Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).  

As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.  Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007).  

Skin Disability, Including Tinea Corporis

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(d).  

Lay evidence is competent as to factual matters of which there is first-hand knowledge and may establish the presence of observable symptoms that are not medical in nature, see Barr, 21 Vet. App. at 307; Washington, 19 Vet. App. at 368, and 38 C.F.R. § 3.159(a)(2), but not competent to establish that which requires specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); 38 C.F.R. § 3.159(a)(1).  

As to issues which involve either medical etiology or diagnosis, medical evidence can be used but "[l]ay evidence can be competent and sufficient to establish a diagnosis when lay evidence (1) is competent to identify the medical condition, (2) reports a contemporaneous medical diagnosis, or (3) describes symptoms at the time supported by a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007).  A diagnosis requires the application of medical expertise to facts, including a description of history and symptoms.  Clemons v. Shinseki, 23 Vet. App. 1, 4 - 5 (2009).  Lay evidence is not competent to provide evidence as to complex medical questions.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).  

Background

The Veteran's STRs show that she was treated for acute urticaria (hives) in May 2002.  

Postservice military clinical records from a Navy Hospital dated in July 2010 include tinea corporis among the Veteran's chronic problems.  

On VA dermatology examination in December 2015 the Veteran's claim file was reviewed.  The Veteran reported that the date of onset of her skin symptoms was in September 2000, which began from the skin on the rib cage down, bilaterally, and was sensitive, changed colors, and itched.  The condition had become worse and more occurred more frequently.  She did not have any benign or malignant skin neoplasms or any systemic manifestations.  She had applied "ketamine lotion" topically, but it was noted that this was for "RSD."  In the past 12 months she had not had any debilitating or non-debilitating episodes due to urticaria.  

There was no specific skin diagnosis, skin blotchiness, temperature changes and swelling secondary to the diagnosed RSD.  She had some mild blotchy patterns on her feet and edema, but there was no specific skin diagnosis.  Rather, she just had a symptom associated with RSD.  The examiner stated that "[f]or the claimant's claimed [skin condition] there is no diagnosis because there [was] no pathology to render a diagnosis."  The examiner opined that there was no pathology to render a diagnosis.  The Veteran's skin changes were part of her established diagnosis of RSD and, as such, there was no separate diagnosed disorder of the skin.  

On VA examination in June 2017, pursuant to the Board's 2016 remand, the Veteran's claim file was reviewed.  It was reported that the Veteran had had a diagnosis of tinea corporis, in 2017.  The Veteran reported that she had had tinea corporis a few times over the past 10 years, which had resolved after using over-the-counter (OTC) Lotrimin topically.  Due to this she did not have scarring or disfigurement of the head, face or neck, benign or malignant skin neoplasms, or any systemic manifestations.  She had used Lotrimin for 6 weeks in the last 12 months.  In the past 12 months she had not had any debilitating or non-debilitating episodes due to urticaria.  On examination she did not have any active infection.  The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The rationale was that there is no documentation of treatment of tinea corporis during active duty.  A 2010 Walter Reed treatment record had tinea corporis listed as a chronic problem; however, this was not actively being treated.  Also, the Veteran stated that she had not had any evaluations or treatments for tinea in quite some time from which the examiner concluded that this was not truly a chronic problem.  

The examiner further stated that the Veteran did not have a distinctly diagnosable skin disability, nor was the Veteran's noted skin symptomatology, including hyperpigmentation, a symptom of an already service-connected disability.  Moreover, the current examination found that the Veteran was normal and there was no evidence of a skin condition secondary to any service-connected condition.  

Analysis

Initially, the Board notes that "[t]inea is 'any of various dermatophytoses of humans, usually designated by a modifying term depending on appearance of lesions, etiologic agent, or site.  Popularly called ringworm.'  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1929 (32d ed. 2012) [hereinafter DORLAND'S].  Dermatophytosis is 'any superficial fungal infection caused by a dermatophyte and involving the stratum corneum of the skin, hair, and nails.'  Id. at 498.  Tinea corporis is 'tinea involving glabrous skin areas other than hands and feet.  Called also ringworm of the body.'  Id. at 1929."  Jones v. Shinseki, No. 11-3307, slip op. footnote 1 at 1 (U.S. Vet. App. Mar. 1, 2013).  

Urticaria is "defined as vascular reaction, usually transient, involving the upper dermis, representing localized edema caused by dilatation and increased permeability of capillaries, and marked by the development of wheals [hives or welts]."  Barclay v. Brown, 4 Vet. App. 161, 163 (1993).  Urticaria is a vascular reaction which is usually transient.  McCay v. Brown, 8 Vet. App. 378, 380 (1995).  Urticaria means a vascular reaction which is usually transient.  McCay v. Brown, 9 Vet. App. 183, 185 (1996).  

Stated in simpler terms, the Veteran's tinea corporis is a fungal infection.  There is evidence that it recurs at times.  However, what the Veteran had during service, i.e., urticarial, is vascular in nature.  As noted above, it is usually transient and, in this case, there is no clinical evidence that the Veteran has ever had a recurrence of urticaria.  Rather, beginning in 2010, as note in clinical notes from Walter Reed, she had the first of several outbreaks of a fungal infection, i.e., tinea corporis.  Consistent with this is that at the 2017 examination she reported having had outbreaks of tinea corporis over the past 10 years, which would antedate the fungal infection to a point in time a number of years after her discharge from service in 2003.  

The recent examiner observed that this condition was not a chronic disability but also, and equally important, that it was not related to military service or even related to a service-connected disability.  In this connection, it must be observed that the Veteran's service-connected RSD is neurological in nature.  Thus, even if she had skin manifestations due to the RSD of her legs, they would be part and parcel of her service-connected RSD of her legs.  However, the Board finds the opinion of the 2017 VA examiner to be more persuasive in establishing that the skin manifestations are not part and parcel of the RSD but, rather, dermatological manifestations of a recurring fungal infection that had its onset after military service.  In this regard, there is no competent evidence, or even allegation, that the Veteran's neurological disabilities of RSD have in any way caused or contributed to the postservice development of her recurring fungal infection, i.e., tinea corporis.  Also, as noted, the onset is shown to have been in 2010, after her military service and, equally important, she has reported that the symptoms resolve after the topical application of an antifungal ointment, i.e., Lotrimin.  Although the Veteran has reported that she applies Lotrimin during skin outbreaks caused by her service-connected RSD, this is, in substance, actually a medical opinion in the guise of lay evidence and, as such, is not competent because the Veteran does not have the education, training or expertise to render a medical opinion.  38 C.F.R. § 3.159(a)(1) and (2); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009).  Even to the extent that the factual matter of recurrences does occur, as related by the Veteran, this lay evidence is lacking in such probative value as to outweigh the opinion of the VA medical professional that examined the Veteran and reviewed the evidentiary record.  

Accordingly, for these reasons the Board must find that the preponderance of the evidence is against the claim for service connection for a skin disability, including tinea corporis.  

Rating Principles

Service-connected disorders are rated by comparing signs and symptoms with criteria in separate DCs which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity.  38 U.S.C.A. § 1155.  Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present.  38 C.F.R. §§ 4.1, 4.2.  A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required.  38 C.F.R. §§ 4.7, 4.21.  Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable."  McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc).  

RSD of the Lower Extremities

The Veteran's RSD of the left and the right lower extremities has been rated analogously as disability of the peroneal nerve.  38 C.F.R. § 4.20 provides for analogous rating "under a closely related disease or injury" and in determining whether disabilities are "closely related" the VA may consider the analogousness of (1) the "functions affected", (2) the "anatomical localization", and (3) the "symptomatology."

38 C.F.R. § 4.27 provides that when an unlisted disability is "encountered requiring rating by analogy, the diagnostic code (DC) number will be 'built-up' as follows: [t]he first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; that last 2 digits will be '99' for all unlisted conditions.  

Under 38 C.F.R. § 4.124a, the schedules for rating diseases of the cranial and peripheral nerves include alternate diagnostic codes for paralysis, neuritis, and neuralgia of each nerve.  See 38 C.F.R. § 4.124a, DC 8205 to 8730.  The diagnostic codes for paralysis of a nerve allow for multiple levels of incomplete paralysis, as well as complete paralysis.  However, the ratings available for neuritis and neuralgia of the same nerves can be limited to less than the maximum ratings available for paralysis.  In rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, DC 7115" as thin skin, absence of hair, dystrophic nails).  Peripheral neuropathy which is wholly sensory is mild or, at most, moderate.  With dull and intermittent pain in a typical nerve distribution, it is at most moderate.  With no organic changes it is moderate or, if of the sciatic nerve, moderately severe.  38 C.F.R. § 4.124a.  Neuralgia of a peripheral nerve of a lower extremity can receive a maximum rating of moderate incomplete paralysis.  38 C.F.R. § 4.124.  Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, can receive a maximum rating of severe, incomplete paralysis.  38 C.F.R. § 4.123.  

Incomplete paralysis, neuritis or neuralgia of the external popliteal (common peroneal) nerve warrants a 10 percent evaluation when mild; a 20 percent evaluation when moderate; and a 30 percent evaluation when severe.  A 40 percent evaluation is warranted for complete paralysis of with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes is lost; abduction of foot is lost, adduction weakened; anesthesia covers the entire dorsum of the foot and toes.  38 C.F.R. § 4.124a, DCs 8521, 8621, 8721.  

Incomplete paralysis, neuritis or neuralgia of the musculocutaneous (superficial peroneal) nerve warrants a noncompensable evaluation when mild; a 10 percent evaluation when moderate; and a 20 percent evaluation when severe.  A 30 percent rating is warranted for complete paralysis with eversion of the foot being weakened.  38 C.F.R. § 4.124a, DCs 8522, 8622, 8722.  

Incomplete paralysis, neuritis or neuralgia of the anterior tibial (deep peroneal) nerve warrants a noncompensable evaluation when mild; a 10 percent evaluation when moderate; and a 20 percent evaluation when severe.  A 30 percent rating is warranted for complete paralysis with dorsal flexion of the foot lost.  38 C.F.R. § 4.124a, DCs 8523, 8623, 8723.  

In this regard, M21-1MR, Part III, Subpart iv, Ch. 4, § G(4)(c) provides that mild incomplete paralysis encompasses the lowest level of evaluation for each nerve and is the default rating assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes.  In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area.  A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.  

Moderate incomplete paralysis is the maximum evaluation reserved for the most significant cases of sensory-only impairment under 38 C.F.R. § 4.124a.  Symptoms will likely be described by the claimants and medically graded as significantly disabling.  In such cases a larger area in the nerve distribution may be affected by sensory symptoms.  Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.  

Moderate is also the maximum evaluation that can be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve, under 38 C.F.R. § 4.124.  

Moderately severe incomplete paralysis is only applicable for involvement of the sciatic nerve and is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123.  Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected.  Atrophy may be present.  However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124, Diagnostic Code 8520. 

With severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability.  Trophic changes may be seen in severe longstanding neuropathy cases.  For the sciatic nerve, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, marked muscular atrophy is expected.  Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve; the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.  Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve, under 38 C.F.R. § 4.123.  

Background

On VA examination in September 2004 it was noted that the Veteran used a walking boot and had a very abnormal gait due to trying to walk without stretching her right Achilles tendinitis (which was the cause of her service-connected right leg pain).  She used arch supports daily due to bilateral plantar fasciitis.  

On official examination in November 2009 the Veteran reported that due to a past (service-connected) injury of her right Achilles tendon, she had weakness, stiffness, swelling, giving way, locking, and pain of the right ankle.  During flare-ups her gait was shorter and walking was limited.  As to her RSD, it was reported that the body part affected was the Achilles tendon with constant pain and weakness but there was no tingling, numbness, abnormal sensation, anesthesia or paralysis.  She was not receiving any treatment and reported that she did not experience any overall functional impairment from the condition.  

However, on physical examination the Veteran's gait, including tandem gait, was normal.  She did not require any assistive device for ambulation.  There were no signs of effusion, weakness, deformity or subluxation of either ankle.  She had full dorsiflexion (to 20 degrees) and full plantar flexion (to 45 degrees) of each ankle which was painless in the left ankle but painful beginning at 10 degrees in the right ankle and a loss of 5 degrees in each plane in the right ankle upon repetitive motion testing.  After repetitive use there was no additional limitation of either ankle due to lack of endurance or incoordination but there was additional limitation of the right ankle due to pain, fatigue, weakness, and pain.  Her coordination was within normal limits.  Neurologically, motor function of the lower extremities was within normal limits but sensory function was abnormal due to decreased sensation to pinprick along the lateral aspect of the "upper/lower" leg.  Knee and ankle jerks were normal, bilaterally.  It was reported that as to the right peroneal nerve, she had RSD.  She had sensory dysfunction but no motor dysfunction.  The diagnoses were limited right ankle motion due to Achilles tendinitis, and RSD with the most likely nerve involved being the peroneal nerve.  

The Veteran was afforded multiple VA examinations on June 26, 2012.  On examination of her hips she complained that her hips were painful and would "freeze up" but on physical examination she had full and painless flexion of each hip with no loss of motion after repetitive use testing.  She did not have any functional loss or impairment of the hips or thighs and strength in both hips was normal.  She walked without any assistive device.  On examination of her ankles she reported that flare-ups affected function, with the right ankle almost locking.  On examination she had full plantar flexion and dorsiflexion of each ankle which was painless in the left ankle but with pain in the right ankle only at the extremes of motion, and without loss of motion or additional impairment in either ankle on repetitive use testing.  There was no localized tenderness or pain on palpation of the ankles; strength was normal in both planes in each ankle; and there was no instability of either ankle.  

On VA peripheral nerve examination on June 26, 2012, it was reported that the Veteran had left reflex dystrophy, which was currently quiescent.  She reported that the condition began due to surgical revision of a neurostimulator revision in 2009, having had the original implantation in 2008 and a subsequent revision in 2010).  She reported that on some days her condition was so bad that she was unable to get out of bed, and that she had difficulty walking, standing, and sitting.  

It was reported that in the Veteran's lower extremities she had, bilaterally, severe pain which at times was excruciating; severe numbness; and severe paresthesias and/or dysesthesias.  However, muscle strength testing was all normal and there was no muscle atrophy.  Reflexes were normal in both knees and ankles except for being 3+ at the right knee.  Moreover, on sensory examination both of her lower extremities were normal and there were no trophic changes.  Also, her gait was normal and she did not use an assistive device.  The examiner reported that the condition (left RSD) did not impact the Veteran's ability to work.  It was commented that reflex dystrophy was a subjective finding.  She had had a spinal stimulator implanted but there were no current objective findings of symptoms on examination.  However, the examiner also noted that symptoms would "tend to come and go."  

On VA peripheral nerve examination on November 21, 2012 it was reported that the Veteran's diagnosis was right leg RSD of the peroneal nerve.  The Veteran reported that a 2008 nerve study had revealed right RSD of the peroneal nerve due to past instep surgery for which she had had pain management therapy, epidural shots, and eventually implantation of a nerve stimulator.  A trial stimulator had worked but following implantation of a permanent stimulator but the leads were broken during childbirth in 2009 and upon replacement there was a puncture of the spinal cord with resultant RSD in the left leg.  Her condition was better with a nerve stimulator but affected both lower extremities from the hips down and she still had pain and sometimes her legs would buckle or give out.  

In the Veteran's lower extremities she had, bilaterally, severe pain which at times was excruciating; severe numbness; and severe paresthesias and/or dysesthesias.  However, muscle strength testing was all normal except that, bilaterally, knee flexion and extension were 4/5, and there was no muscle atrophy.  Reflexes were normal in both knees and ankles.  On sensory examination both of her lower extremities were normal, except for decreased sensation in the L5 nerve root distribution in the right foot and toes.  There were no trophic changes.  As to her gait, by the end of the day she would limp due to RSD.  

The examiner reported that the only lower extremity peripheral nerves affected were the peroneal nerves of each leg, with mild incomplete paralysis of the right peroneal nerve, although the left peroneal nerve was normal.  She occasionally used a cane to walk, about twice weekly, usually Monday and Tuesday after chasing her children all weekend.  A 2008 EMG study found abnormal results as to the right leg but normal results as to the left leg.  

As to the Veteran's ability to work, she reported that there were days when she could not get out of bed or stand, and many nights she could not sleep due to severe pain and she reported that due to this she could not work.  When she could not get out of bed her husband had to leave work to care for their child.  

On official peripheral nerve examination on December 9, 2015 it was reported that the Veteran had RSD of both lower extremities.  In the Veteran's lower extremities she had, bilaterally, severe pain which at times was excruciating; severe numbness; and severe paresthesias and/or dysesthesias.  Muscle strength testing was normal in all extremities and there was no muscle atrophy, and reflexes were normal at both knees and both ankles.  On sensory examination both of her lower extremities were normal, except for being super-hypersensitive to touch of both legs, thighs, and feet; and light touch caused significant pain.  However, there were no trophic changes.  As to her gait, she occasionally used a wheel chair, about 2 days per week, due to her legs giving out and being painful, until she got a service dog trained.  

The impact of the peripheral neuropathy on the Veteran's ability to work was that it would come and go without any warning, such that she could not be reliable.  If she was at work and it occurred because she did something insignificant, she would not be able to focus on her job instead of the pain.  She got flare ups very consistently.  Potential employers had told her they would not hire her due to the medications she was taking, to include Methadone and ketamine infusions.  She was down for days at a time when she had a bad flare-up.  Two years ago she tried to do sales/ marketing, but she did not get anywhere because she could not host a party when she could not move.  In 2006 she tried to work at photo studio and she quit because the pain was getting too bad.  

The examiner was asked to distinguish between the Veteran's symptoms attributable to her bilateral hips strains and her RSD of each leg.  It was stated that the RSD caused a burning sensation, tingling, and color changes in her legs; whereas, the bilateral hip strains caused tenderness of the hip joints and painful motion of the hip joints.   

On VA peripheral nerve examination on June 15, 2017 the Veteran's diagnosis was bilateral lower extremity reflex sympathetic disorder.  A past EMG had confirmed peroneal nerve RSD.  She had been treated with Gabapentin, and nerve blocks without improvement.  In 2008 she had a nerve stimulator placed.  In 2009, this had to be revised and she had a spinal cord injury which caused RSD in her left foot.   Her current symptoms were chronic bilateral foot/leg burning pain, leg cramping, discolorations (red, purple, and white), and paresthesias.  

In the Veteran's lower extremities she had, bilaterally, severe pain which at times was excruciating; severe numbness; and moderate bilateral numbness as well as paresthesias and/or dysesthesias.  Muscle strength testing was normal in all extremities and there was no muscle atrophy, and reflexes were normal at both knees and both ankles.  On sensory examination of her lower extremities were normal, i.e., as to the upper anterior thigh (L2 nerve distribution), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and feet/toes (L5).  However, it was reported that she had significant discomfort of the lower extremities on light touch.  She had findings consistent with hyperpathia (increased pain to painful stimuli) and allodynia (disproportionate pain to things that should not cause pain).  However, there were no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.).  Her gait was normal.  

On evaluation as to the severity of affected peripheral nerves in the Veteran's lower extremities, all peripheral nerves of the lower extremities were normal except for moderate incomplete paralysis of the anterior tibial, i.e., the deep peroneal nerve, of each lower extremity.  The external popliteal (common peroneal) nerves and the musculocutaneous (superficial peroneal) nerves were normal, bilaterally.  The examiner reported that the Veteran had findings consistent with hyperpathia (increased pain to painful stimuli) and allodynia (disproportionate pain to things that should not cause pain).  

It was reported that the Veteran occasionally used a wheel chair and occasionally used canes due to RSD.  She used a cane/wheelchair at home, depending on what she was doing and the severity of her symptoms.  She also had a service dog.  It was reported that the Veteran's peripheral neuropathy impacted her ability to work, and she reported that it caused pain, weakness, numbness/tingling, and instability to such an extent that she was unable to work.  

An initial rating in excess of 10 percent for left lower extremity RSD

Here, the 10 percent rating is assigned for mild incomplete neuritis of the left external popliteal (common peroneal) nerve under DC 8621.  To warrant the next higher rating of 20 percent it must be shown that she has moderate incomplete paralysis, neuritis or neuralgia of the left external popliteal (common peroneal), or severe incomplete paralysis, neuritis or neuralgia of the left musculocutaneous (superficial peroneal) nerve under DCs 8522, 8622, 8722, or severe incomplete paralysis, neuritis or neuralgia of the left anterior tibial (deep peroneal) nerve under DCs 8523, 8623, 8723.  In this regard, all three of these DCs, e.g., 8521, 8522, and 8523 affect function of the feet such that separate ratings under each of these DCs is not permitted without violating the prohibition against pyramiding, i.e., double compensation, under 38 C.F.R. § 4.14.  

Initially, the Board notes that both clinical and lay evidence indicate that the Veteran's symptomatology may fluctuate.  However, a review of the evidence of record demonstrates that the Veteran does not have muscle atrophy, weakness, loss of reflexes or trophic changes of the left lower extremity.  Thus, it is clear that not only does she not have complete paralysis of any peroneal nerve but that she does not have severe incomplete paralysis, neuritis or neuralgia of any peroneal nerve.  

Overall, the Veteran has had neither decrease in sensory function with respect to the detection of sensations in the left leg nor any decrease in strength or reflexes.  Rather, she has had consistent complaints of pain.  The June 2017 examiner found that the Veteran had moderate incomplete paralysis.  Under DCs 8521, 8621, or 8721 the external popliteal, or common peroneal, nerve this would warrant a 20 percent rating.  However, the 2017 examiner specifically stated that the external popliteal, or common peroneal, as well as the musculocutaneous, superficial peroneal, nerve were normal, bilaterally.  In fact, the 2017 examiner stated that the moderate incomplete paralysis affected, specifically, the anterior tibial, deep peroneal, nerve.  

Moderate disability of the musculocutaneous, superficial peroneal, nerve and the anterior tibial, deep peroneal, nerve warrants no more than a 10 percent disability rating.  While a 20 percent rating would be warranted under DCs 8521, 8621, or 8721 for moderate disability of the external popliteal, or common peroneal, nerve that examiner, as noted, found that this specific peripheral nerve was normal in each lower extremity.  The evidence does not show that the neuropathy has changed from affecting one of the three peroneal nerves to another.  

The Board has considered that the Veteran has hyperpathia, i.e., increased pain to painful stimuli, and allodynia, i.e., disproportionate pain to things that should not cause pain, but even this was noted by the 2017 VA examiner to be productive of or equate to only moderate incomplete paralysis of the anterior tibia, deep peroneal, nerve.  Under DCs 8523, 8623 or 8723 this would warrant no more than the current 10 percent rating assigned.  

In other words, while the 10 percent rating has been assigned by the RO under DC 8621, for mild incomplete neuritis of the external popliteal, common peroneal, nerve, the Board finds that given the absence of decreased reflexes, decreased strength, muscle atrophy, trophic or organic changes the Veteran does not have the combination of symptoms and findings demonstrating moderate incomplete paralysis, neuritis or neuralgia of that peripheral nerve which would warrant a 20 percent disability rating under DC 8521, 8621, or 8721.  The finding by the 2017 VA examiner of moderate impairment of the anterior tibial, deep peroneal, nerve is found by the Board to be persuasive having been based on a detailed examination and determination of the specific peroneal nerve which was affected.  Also, while the Veteran has reported that pain affects her gait and mobility, and she has used a cane and more recently a wheel chair, the absence of supportive clinical findings of decreased strength or muscle atrophy lead to the conclusion that such ambulatory aids are not needed due to any peripheral neuropathy but because of her service-connected orthopedic disabilities of the right ankle and both hips.  

Accordingly, the Board finds that throughout the appeal period the preponderance of the evidence is against finding that the Veteran's left lower extremity RSD was of such severity as to warrant a disability rating in excess of 10 percent.  

An initial rating in excess of 10 percent for right peroneal nerve RSD, excluding periods for which a temporary total rating has been assigned under 38 C.F.R. § 4.30

The service-connected right peroneal nerve is also rated under DC 8621 for mild incomplete neuritis of the left external popliteal (common peroneal) nerve.  

Here, both clinical and lay evidence indicate that the Veteran's symptomatology may fluctuate.  However, a review of the evidence of record demonstrates that the Veteran does not have muscle atrophy, weakness, loss of reflexes or trophic changes of the left lower extremity.  Thus, it is clear that not only does she not have complete paralysis of any peroneal nerve and that she does not have severe incomplete paralysis, neuritis or neuralgia of any peroneal nerve.

The June 2012 rating examination found that reflexes were normal except for a slightly increased right knee reflex, which was 3+, and the November 2012 examination found that there was a slight decrease in muscle strength on movement of the right knee, which was 4/5.  However, the November 2009 rating examination and later examinations in 2015 and 2017 found no abnormality or impairment of her reflexes or muscle strength.  Rather, as with the left lower extremity RSD, the findings as to her right lower extremity RSD have been primarily sensory.  The Veteran's more recent complaints at the 2017 examination of weakness are refuted by objective clinical findings at that time, and is here complaint at that time of instability inasmuch as it was noted that her gait was normal.  

The Board has considered that the Veteran has hyperpathia, i.e., increased pain to painful stimuli, and allodynia, i.e., disproportionate pain to things that should not cause pain, but even this was noted by the 2017 VA examiner to be productive of or equate to only moderate incomplete paralysis of the anterior tibia, deep peroneal, nerve, with the other peroneal nerves being normal.  Under DCs 8523, 8623 or 8723 this would warrant no more than the current 10 percent rating assigned.  

In other words, while the 10 percent rating has been assigned by the RO under DC 8621, for mild incomplete neuritis of the external popliteal, common peroneal, nerve, the Board finds that given the absence of decreased reflexes, decreased strength, muscle atrophy, trophic or organic changes the Veteran does not have the combination of symptoms and findings demonstrating moderate incomplete paralysis, neuritis or neuralgia of that peripheral nerve which would warrant a 20 percent disability rating under DC 8521, 8621, or 8721.  The finding by the 2017 VA examiner of moderate impairment of the anterior tibial, deep peroneal, nerve is found by the Board to be persuasive having been based on a detailed examination and determination of the specific peroneal nerve which was affected.  Also, while the Veteran has reported that pain affects her gait and mobility, and she has used a cane and more recently a wheel chair, the absence of supportive clinical findings of decreased strength or muscle atrophy lead to the conclusion that such ambulatory aids are not needed due to any peripheral neuropathy but because of her service-connected orthopedic disabilities of the right ankle and both hips.  

Accordingly, the Board finds that throughout the appeal period the preponderance of the evidence is against finding that the Veteran's right lower extremity RSD was of such severity as to warrant a disability rating in excess of 10 percent.  

An initial compensable evaluation for painful intercourse and decreased libido with hypesthesia

Following the September 2015 Board decision granting service connection for painful intercourse and decreased libido with hypesthesia, a March 2016 rating decision effectuated that grant and assigned an initial noncompensable disability rating, all effective September 1, 2011.  While the formal text of the rating decision addressed a rating based on impairment of the hypoglossal nerve, the Board notes that the hypoglossal nerve is the 12th cranial nerve.  See 38 C.F.R. § 4.124a, Diagnostic Code 8411.  This nerve has nothing to do with matters relating to intercourse, libido or the genitourinary region.  However, the Rating Code Sheet shows that the Veteran's service-connected painful intercourse and decreased libido with hypesthesia has been rated as a disease or injury of the vagina, under 38 C.F.R. § 4.116, Diagnostic Code 7611, which in turn is rated under a General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs.  That General Rating Formula provides for a noncompensable rating when symptoms do not require continuous treatment; a 10 percent rating when requiring continuous treatment, and a maximum 30 percent rating when the symptoms are not controlled by continuous treatment.  

Background

A statement dated January 19, 2015 from Dr. A. Ali reflects that after reviewing the inservice and postservice medical records it was noted that an August 2011 note by a neurosurgeon indicated that the Veteran had complex regional pain syndrome, due to which there was a discussion with the Veteran about removing an old implantation device and performing a thoracic laminectomy for implantation of a new laminectomy electrode.  This included the risks and benefits, including possible sexual dysfunction.  The procedure was done in September 2011.  It was noted that complex regional pain syndrome was an uncommon form of chronic pain, usually affecting an extremity, and was not clearly understood.  The symptoms and signs of that disorder were listed, but did not include pain during intercourse or decreased libido.  Nevertheless, it was opined (without explanation) that the Veteran's painful intercourse and decreased libido, as well as bilateral hip condition, were related to the Veteran's service-connected right Achilles injury.  As a result of past surgery, the nerves below her T8 level were affected, including the nerves required for her hips, legs, and pelvic floor function - including sexual intercourse.  It was stated that a July 2012 Disability Benefits Questionnaire indicated she had painful intercourse with decreased libido and hyperesthesia and while there was no diagnosis because there was no diagnosed mental disorder, such a medical condition did not require that there be a mental disorder.  

On VA gynecological examination on December 9, 2015, the Veteran reported that this condition began in 2008.  She reported having pain in her hips with positioning for intercourse.  She denied dyspareunia, just pain in hips joints from trying to have intercourse.  She was interested in sex, and sexually arousable to breast stimulation and foreplay type activities.  It was reported that she was definitely interested in having sexual relations; however, she guarded against sexual activity due to the hip pain during intercourse.  She had tried sexual relation type activities that did not involve penile penetration that were not so painful, but the release of endorphins involved with orgasm caused a flare up of her RSD and left her bedridden for the next  4 to 5 days. 

The Veteran did not currently have symptoms related to a gynecological condition, including any diseases, injuries or adhesions of the female reproductive organs.  She had not had treatment for her symptoms.  She did not currently require treatment or medications for symptoms related to a reproductive tract condition.  

She had not been diagnosed with any diseases, injuries or other conditions of the vulva, vagina, cervix, uterus, ovaries, or Fallopian tubes including pelvic inflammatory disease.  She had not had a hysterectomy, uterine prolapse, uterine fibroids, enlargement of the uterus and/or displacement of the uterus, or endometriosis.  She had not undergone menopause and there was no atrophy or removal of one or both ovaries.  She did not have a rectovaginal or urethrovaginal fistula.  She did not have urinary incontinence or urinary leakage.  She had not had any surgical complications of pregnancy, or any complications resulting from obstetrical or gynecologic conditions or procedures.  She had not had a laparoscopic evaluation and had not been diagnosed as having anemia.  

The Veteran denied having dyspareunia or decreased libido.  Rather, the examiner stated that the Veteran's symptoms, as described, were consistent with her diagnosis of RSD.  A PAP and pelvic examination were not indicated.  

On VA genitourinary examination on December 9, 2015, it was noted that the Veteran had never been diagnosed with a condition of the bladder or urethra of the urinary tract.  Beginning in 2007 her hips started getting really bad and she started having problems sitting on the toilet to urinate due to hip pain.  She denied having any bladder condition.  She did not have voiding dysfunction, including no urinary leakage, increased urinary frequency or obstructed voiding.  The examiner concluded that there was no pathology upon which to render a diagnosis of a genitourinary condition, rather it just hurt to sit on a toilet.  

Analysis

Initially, the Board notes that it is clear that the Veteran does not have any actual pathology of her genitourinary tract.  Also, despite the January 2015 statement of a private physician the Veteran's complaint of painful intercourse, the VA examinations have clarified that her complaint is of pain in her hips and not in the genitourinary region.  In fact, at the December 2015 VA gynecological examination the Veteran specifically denied having dyspareunia, which is difficult or painful coitus.  

Furthermore, and again despite the comment in the January 2015 statement of a private physician and other evidence of record, at the December 2015 VA gynecological examination it was clarified that the Veteran does not actually have decreased libido.  

Equally important, inasmuch as the Veteran's real complaint is that of pain in her hips, due to positioning during intercourse, it must be observed that the Veteran is already service-connected for a strain of each hip, with each being assigned a 10 percent disability rating, both effective September 1, 2011.  To assign a separate compensable rating based upon complaints of pain during a particular functional activity, in this case intercourse, would result in double compensation which is prohibited under 38 C.F.R. § 4.14.  

Accordingly, the Board finds that a compensable disability rating for painful intercourse and decreased libido with hypesthesia is not warranted at any time during the appeal period.  

An initial compensable rating for migraine headaches from September 1, 2011 and a rating in excess of 30 percent since December 9, 2015

Under 38 C.F.R. § 4.124a, DC 8100 migraine headaches warrant a 10 percent rating when there are characteristic prostrating attacks averaging one in 2 months over the last several months; with less frequent attacks a noncompensable rating is assigned.  A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating is warranted when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

VA regulations do not define "prostrating;" nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack).  By way of reference, the Board notes that according to MERRIAN WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion."  A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."  

While VA regulations also do not define "economic inadaptability" the Court has noted that nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).  


Background

On VA examination on June 26, 2012 it was reported that the Veteran's headaches were idiopathic.  Her treatment plan included taking medication, and her symptoms were controlled with medication.  When she had a headache she had constant head pain on both sides of her head which typically lasted less than one day.  She did not have nausea, vomiting, sensitivity to light or sound, changes in vision or sensory changes.  The examiner reported that the Veteran did not have characteristically prostrating attacks of migraine or non-migraine headache pain.  Her headaches impacted her ability to work because they affected and interfered with her ability to concentrate and focus.  

On VA examination on December 9, 2015 it was reported that the Veteran had tension headaches.  She related that the condition began 4 to 5 years earlier and she felt that the headaches might be the side effect of pain medication.  Her symptoms occurred once weekly.  Her treatment plan did not include taking medication.  When she had a headache she had constant head pain on both sides of her head which worsened with physical activity.  An associated non-headache symptom was sensitivity to light but she did not have nausea, vomiting, sensitivity to sound, changes in vision or sensory changes.  The headaches typically lasted less than one day.  She did not have characteristically prostrating attacks of migraine headaches, including not having very frequent prostrating and prolonged attacks of migraine headaches.  However, she did have prostrating attacks of non-migraine headache pain which occurred more frequently than once per month, but they were not very frequent prostrating and prolonged attacks of non-migraine headaches.  Her headaches impacted her ability to work because during a headache she had to stay in bed about once per week due to the headache.  It was noted that she was not employed due to her reflex sympathetic dystrophy.  

Analysis

As revealed by the June 2012 VA examination prior to December 9, 2015, the evidence shows that the Veteran did not have prostrating attacks of headaches, either migraine or non-migraine.  Rather, her symptoms were controlled with medication.  Accordingly, prior to December 9, 2015, she did not meet the criteria for a compensable disability rating for her headaches.  

The December 9, 2015 VA examination revealed that the Veteran was no longer taking medication for control.  She had prostrating attacks of non-migraine headache pain more than once a month.  This meets, and even exceeds the rating for a 30 percent disability rating; however, for the next higher rating of 50 percent she had to have had very frequent completely prostrating and prolonged attacks causing severe economic inadaptability.  The December 9, 2015 examination clearly reflects that she did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headaches.  As to economic inadaptability, that examiner also reported that she was not employed due to reflex sympathetic dystrophy, as opposed to the severity of her headaches.  The Board notes that, as stated above, a claimant need not be completely unable to work in order to qualify for a 50 percent rating.  Nevertheless, that examiner further stated that while the Veteran had sensitivity to light during her headaches, she did not have nausea, vomiting, sensitivity to sound, changes in vision or sensory changes.  Further, while she related that she had to stay in bed about once weekly due to a headache it must also be noted that she reported that the headaches typically lasted less than one day.  Thus, the Board finds that the headaches are not productive of severe economic inadaptability and, as such, a 50 percent disability rating is not warranted.  

The Board has considered the doctrine of the favorable resolution of doubt but finds in this case that, for the reasons stated, the preponderance of the evidence is against finding that an initial compensable rating for migraine headaches is warranted prior to December 9, 2015, and against finding that a rating in excess of 30 percent is warranted since December 9, 2015.  

Extraschedular Consideration

In VA Form 9 dated August 22, 2017 the Veteran's attorney stated that the release of endorphins during orgasm caused flare-ups of the Veteran's service-connected RSD of each lower extremity, leaving her bedridden for 4 to 5 days, based upon which extraschedular consideration was requested.  However, extraschedular consideration has not been requested as to the other service-connected disorders for which increased compensation is sought.  

An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  This requires a three-set inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  First, is whether the evidence presents such an exceptional disability picture that the schedular evaluations are inadequate, necessitating a comparison between the level of severity and symptoms with the rating criteria, and if the criteria reasonably describe the symptoms and level of severity, the assigned schedular rating is adequate and no referral is required.  Second, if the schedular rating does not contemplate the symptoms and level of severity and is inadequate, it must be determined if there exists and exceptional disability picture which exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, if the first two inquiries are met, then the case is referred to the appropriate VA official for consideration.  Id.  

If either (1) the claimant's disability picture is adequately contemplated by the rating schedule or (2) there are no other related factors," for example, frequent hospitalizations or marked interference with employment, then referral is not warranted and the other element need not be considered.  The order in which these elements are addressed is irrelevant because they both have to be met before referral is warranted.  See id.; Thun, 22 Vet. App. at 116; see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009).   

The United States Court of Appeals for the Federal Circuit had held that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); overruling Johnson v. Shinseki, 26 Vet. App. 237, 248 (2013).  In Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) the Veterans Court rejected the contention that "[e]xtraschedular referral is always raised by the record when a veteran has multiple service-connected disabilities" [and that the Federal Circuit's decision in] Johnson [v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014)] does not make such a categorical holding."  Also, when there are multiple service-connected disorders the Board's jurisdiction was limited to only those service-connected disorders on direct appeal because it lacked jurisdiction to consider whether extraschedular referral for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.  Yancy, 27 Vet. App. at 496 (2016).  Further, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities.  See Final Rule, 82 Fed.Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed.Reg. 23228, 23232 (Apr. 20, 2016).  This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018.

The Veteran has been assigned a 10 percent rating for RSD of each leg and this that contemplates functional impairment, including the impact on her ability to work.  See 38 C.F.R. § 4.1 (2017) (generally the degree of disability specified is considered adequate to compensate for considerable time lost from work due to exacerbation or illnesses commensurate with the degree or grade of disability).  

As addressed in the analysis of the ratings assigned for the service-connected RSD of each leg, it is not disputed that each of these disorders fluctuates in severity.  Moreover, it seems paradoxical that an increased rating was sought to a service-connected disorder manifested by painful intercourse and decreased libido with hypesthesia and yet, at the same time, contend that reaching orgasm aggravates the Veteran's RSD of each leg, causing her to be temporarily bedridden.  In any event, as noted above, the ratings assigned contemplate fluctuations in the severity of her service-connected RSD of each leg.  Moreover, the Veteran has been assigned a TDIU rating since September 1, 2011.  

With respect to the contention of being bedridden following intercourse, the Board notes that the Veteran also has disability from another compensable service-connected musculoskeletal disorders, i.e., right leg pain due to Achilles tendinitis rated 20 percent disabling, and this also contributes to her overall disability picture.  Further, a wide range of disabling symptoms are contemplated under the rating guidelines for disabilities of the peripheral nerves.  See 38 C.F.R. §§ 4.120 (disturbances gait and complete or partial loss of use of one or more extremities), 4.123 (loss of reflexes, muscle atrophy, sensory disturbance, constant and even excruciating pain, and organic changes), 4.124 (pain).  Thus, the complaint of being bedridden due to pain from the service-connected RSD of each leg is contemplated in the current rating assigned for each of these disorders.  

The Board acknowledges that each of these service-connected disorders results in occupational impairment but such pecuniary loss is the purpose of VA disability compensation based on average earning impairment and here the evidence does not show that the service-connected RSD of each leg has interfered with employment beyond what is contemplated by the rating criteria.  While it is true that the scheduler rating criteria do not always address the symptoms specifically described by the Veteran but this alone does not mean that the rating criteria are inadequate.  38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  

As to the contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is inadequate in any way.  See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014)(nonprecedential memorandum decision).  

Also, the flexibility of the VA Rating Schedule allows for consideration of such matters as the bilateral factor, See, e.g., 38 C.F.R. § 4.26, Bilateral Factor, the combined effect of certain disabilities may result in greater disability and therefore require greater compensation.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  Here, because the Veteran service-connected disorders under extraschedular consideration affect both lower extremities the bilateral factor is for application in determining the combined rating for the purpose of calculating the amount of disability compensation payable.  

Also, when service-connected disabilities reach certain levels so as to render a Veteran either housebound or in need of regular aid and attendance of another and award of SMC may be in order.  See generally 38 C.F.R. § 3.350, Special monthly compensation ratings (setting forth the schedule for SMC ratings).  

In sum, the evidence of record does not reflect that the service-connected RSD of either leg is so exceptional as to not be contemplated by the rating schedule.  Rather, there is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  Thus, even with the favorable resolution of doubt, the Veteran has not carried her burden of demonstrating that her RSD of each leg is of such a nature that referral for extraschedular consideration is warranted.  

SMC based on the need for the regular A&A of another or HB status, due to service-connected disabilities

SMC may be granted to a Veteran on the basis of the need for regular aid and attendance from another person or by virtue of being permanently housebound.  In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously.  SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound.  38 U.S.C.A. § 1114(l), (s). 

SMC by reason of the need for regular aid and attendance of another person is payable if a Veteran, as the result of service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/so helpless as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).  Determinations should be on the basis of a Veteran being permanently bedridden rather than needing regular aid and attendance to avoid reduction during hospitalization where aid and attendance is provided in kind.  38 C.F.R. § 3.350(b)(4).  

Bedridden means that the Veteran is actually required to remain in bed.  38 C.F.R. § 3.352(a).  The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  Id. 

In determining the need for regular aid and attendance of another person, several factors are for consideration.  Id.  These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran's particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.), (3) the inability of the Veteran to feed him or herself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden.  Id.  

Permanently housebound means substantial confinement to a dwelling and the immediate premises and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 C.F.R. § 3.351(d)(2).  

It is not required that all of the disabling factors be found to exist before a favorable determination is made for regular need for aid and attendance of another person.  38 C.F.R. § 3.352(a).  The particular personal functions that the Veteran is unable to perform should be considered in connection with his condition as a whole.  Id.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need.  Id.  

Granting SMC by reason of the need for regular need for aid and attendance of another person requires that at least one of the above disabling factors be met.  Turco v. Brown, 9 Vet. App. 222 (1996).  Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran's condition is such as would require him or her to be in bed.  38 C.F.R. § 3.352(a).  Such a determination instead must be based on the actual requirement of personal assistance from others.  Id. 

Analysis

The Veteran's service-connected disabilities are insomnia with adjustment and depressive disorder, rated noncompensable from September 1, 2011 and as 50 percent from November 24, 2015; scars of the mid-line of the low back, left and right iliac crests, status post (SP) neuro-stimulator implant, rated noncompensable from September 22, 2009, 20 percent from September 1, 2011, and 30 percent from December 9, 2015; scar, SP neuro-stimulator implant of left iliac crest, rated 10 percent from September 22, 2009 to April 1, 2013; migraine headaches, rated noncompensable from September 1, 2011 and 30 percent from December 9, 2015; right leg pain (secondary to Achilles tendinitis), rated 20 percent from January 1, 2004; left lower extremity RSD rated 10 percent from April 11, 2011; left hip strain, rated 10 percent from September 1, 2011; right hip strain, rated 10 percent from September 1, 2011; right peroneal nerve RSD, rated 10 percent from September 22, 2009, with a 100 percent temporary total rating under 38 C.F.R. § 4.30 from July 26, 2010, 10 percent from September 1, 2010, a 100 percent temporary total rating under 38 C.F.R. § 4.30 from September 19, 2011, and a schedular 10 percent rating from December 1, 2011; right second toe succession surgery residuals, rated noncompensably disabling from January 1, 2004; right plantar fasciitis, rated noncompensably disabling from January 1, 2004; painful intercourse and decreased libido with hypesthesia (associated with right peroneal nerve RSD), rated noncompensably disabling from September 1, 2011.  

Other than periods during which a 100 percent temporary total rating under 38 C.F.R. § 4.30 has been assigned, there has been a combined disability rating of 20 percent from January 1, 2004; 40 percent from September 22, 2009; 50 percent from April 11, 2011; 70 percent from September 1, 2011; 60 percent from April 1, 2013; 80 percent from November 24, 2015; and 90 percent from December 9, 2015.  A schedular TDIU rating has been in effect since September 1, 2011.  

On VA psychiatric examination in November 2015 it was reported that the Veteran's insomnia with medical comorbidity of pain, and an adjustment disorder-depressed due to a medical condition caused occupational and social impairment best summarized as impairment with reduced reliability and productivity.  Following her military service she had had to leave school and jobs due to pain-related issues.  She was not currently seeing mental health professionals.  

In a January 2017 statement the Veteran reported that her RSD conditions were worsening and she took Methadone for pain and wanted more Ketamine infusions.  Her husband and children helped her stand and walk on her bad days, which were becoming more frequent.  

The Board is cognizant of the Veteran's multiple service-connected disorders and that since at least September 1, 2011 they have prevented her from obtaining and retaining substantially gainful employment.  However, this is not the same and does not equate with being in need for regular need for aid and attendance of another or being housebound.  

The Veteran's disabilities are not shown to equate with loss of use of both feet, and she is not service-connected for disability(ies) of the hands or eyes.  While she has reported that at times she has such pain that she cannot arise from bed, this is only at most on an occasional basis and the evidence simply does not demonstrate that she is permanently bedridden.  She has reported that at times when she cannot arise from bed her husband must take off from work but this is for the purpose of caring for their children and not because she is in need of assistance.  

Likewise, the evidence is against finding that she is unable to dress or undress herself or to keep herself ordinarily clean and presentable.  She is not shown to have the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of her disabilities cannot be done without the aid of another.  Similarly, she is not unable to feed herself due to loss of coordination or extreme weakness, and while she has pain in her hips when attending to the wants of nature, specifically when sitting on a toilet, it is not shown that she is unable to attend to the wants of nature by herself.  She does not have such incapacity, physical or mental, due to service-connected disabilities which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment.  The evidence does not establish that the Veteran is able to leave the home on an as needed basis.  

In this case, for the reasons stated above, the Board finds that the Veteran's service-connected disabilities do not render her unable to perform daily activities of living without the assistance of another and do not cause her to be housebound.  

ORDER

Service connection for a skin disability, to include tinea corporis, is denied.  

An initial rating in excess of 10 percent for left lower extremity RSD and an initial rating in excess of 10 percent for right peroneal nerve RSD is denied.  Also, an initial compensable evaluation for painful intercourse and decreased libido with hypesthesia is denied.  

An initial compensable rating for migraine headaches from September 21, 2011 and a rating in excess of 30 percent since December 9, 2015 is denied.  

SMC based on the need for the regular aid and attendance (A&A) of another or housebound (HB) status, due to service-connected disabilities is denied.  


REMAND

In this case, the Veteran did not meet the criteria for a schedular TDIU rating under 38 C.F.R. §4.16(a) prior to September 1, 2011.  However, there remains the matter of whether the Veteran met the criteria for a TDIU rating on an extraschedular basis, under 38 C.F.R. § 4.16(b), prior to September 1, 2011.  In this regard, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance inasmuch as this may be done only by the Director of Compensation

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The RO must refer the claim for a TDIU rating prior to September 1, 2011, to VA's Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  

2.  Thereafter, and after consideration of any additional evidence submitted during this appeal, and following all development requested herein including referral of the above mentioned matters to the Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), the AOJ should readjudicate the claim for a TDIU rating prior to September 1, 2011, and readjudicate the issue of entitlement to basic eligibility to DEA prior to September 1, 2011.  

If the claim remains denied issue an SSOC to the Veteran and his attorney and provide them with the appropriate period of time within which to respond before returning the case to the Board.  

The RO should also readjudicate the claim for entitlement to basis eligibility to DEA benefits prior to September 1, 2011.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs