Citation Nr: 1805057 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 97-31 974A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral. 2. Entitlement to a disability rating in excess of 10 percent for a chronic low back strain with arthritis prior to August 23, 2013, and in excess of 20 percent, thereafter. 3. Entitlement to a disability rating in excess of 20 percent for residuals of a gunshot wound to the left foot with reflect sympathetic dystrophy prior to April 3, 2013, and in excess of 80 percent, thereafter. 4. Entitlement to a disability rating in excess of 10 percent for scar of the left upper chest posterior, effective October 23, 2008. 5. Entitlement to an extraschedular rating for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral. 6. Entitlement to an extraschedular rating for chronic low back strain with arthritis. 7. Entitlement to an extraschedular rating for residuals of a gunshot wound to the left foot with reflex sympathetic dystrophy. 8. Entitlement to an extraschedular rating for scar on the left upper chest posterior. 9. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 11, 1995, to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from September 1967 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case has a long procedural history dating back to October 1994 when the Veteran filed an informal increased rating claim for injury to the muscle and scarring, related to his gunshot wounds to the chest and left foot in service, as well as a claim for additional disabilities, including in his back. A July 1995 rating decision, in pertinent part, granted service connection for chronic back pain due to reflex sympathetic dystrophy, assigning a 10 percent rating, effective October 18, 1994; denied an increased rating higher than 20 percent for residuals of gunshot wound to the pleural cavity, pneumothorax with damage to muscle group XXI lower left chest and lateral; and denied a compensable rating for scar on the left upper chest posterior. A June 1996 rating decision, in pertinent part, denied an increased rating higher than 30 percent for residuals of gunshot wound to the left foot. The Board addressed this claim in September 2004, at which point, in pertinent part, the increased rating claim for residuals of gunshot wound to the left foot with reflex sympathetic dystrophy was remanded for additional examination; and a prior severance of service connection for the back disability was found to be improper and was reinstated. In November 2010, the Board, in pertinent part, denied an increased rating higher than 30 percent for residuals of gunshot wound to the left foot with reflex sympathetic dystrophy; and found that a notice of disagreement in reference to the July 1995 rating decision (noted above) was not timely. However, in October 2011, the U.S. Court of Appeals vacated the Board's November 2010 decision, insofar as it denied a rating in excess of 30 percent for residuals of gunshot wound to the left foot, and determined that the Veteran had not submitted a timely notice of disagreement following receipt of the July 1995 rating decision. The September 2011 Joint Motion for Partial Remand noted that the Board's finding that the Veteran's left foot disability was not predicated on limitation of motion was not supported by adequate reasons and bases. The Joint Motion also noted that the Board did not consider the potentially applicable Diagnostic Code 5275, which allows for a 10 percent rating for 1 1/4 inch to 2-inch shortening of the bones of the lower extremity. With respect to the timeliness of the notice of disagreement, the Joint Motion found that the Board failed to discuss whether statements in support of his claim submitted within one year of the July 1995 rating decision could have been construed as new and material evidence under 38 C.F.R. § 3.156(b). In September 2012, the Board, in pertinent part, found the notice of disagreement with the July 1995 rating decision timely, and remanded the remaining issues on appeal for additional development. The case was returned to the Board again in January 2017, at which point the Board granted an increased rating of 10 percent for the scar on the left posterior chest throughout the entire appeals period, based on the criteria in effect for scars prior to 2008. The RO implemented the Board's decision in a January 2017 rating decision and assigned a 10 percent rating for the chest scar, effective October 18, 1994. However, the Board remanded the issue of entitlement to a rating higher than 10 percent for the scar on the left upper chest posterior for consideration of the scar under the criteria, effective October 23, 2008. The Board also remanded the remaining issues on appeal for VA examinations to address the present severity of the disabilities on appeal. During the course of the remands, higher ratings were assigned. See, e.g., June 2014 rating decision, in pertinent part, granting an increased rating of 20 percent for the low back disability, effective August 23, 2013; and an increased rating of 80 percent for loss of use of the left lower extremity due to residuals of gunshot wound to the left foot with metatarsalgia and reflex sympathetic dystrophy of the left lower extremity, effective August 23, 2013; and July 2017 rating decision, granting an earlier effective date of April 3, 2013, for the 80 percent rating for loss of use of the left lower extremity due to service-connected residuals of gunshot wound to the left foot with metatarsalgia and reflex sympathetic dystrophy of the left lower extremity. The most recent supplemental statement of the case in September 2017 incorrectly notes that the Veteran has an 80 percent rating for gunshot wound to the left foot, effective prior to August 23, 2013. This is not reflected by the most recent rating codesheet in July 2017, which notes April 3, 2017 as the effective date for the 80 percent rating for the left lower extremity. The Veteran has been assigned a total disability evaluation based upon individual unemployability as due to service-connected disabilities (TDIU), effective December 11, 1995. However, an inferred claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) applies, as part of his increased rating claim for his residuals of gunshot wound to the chest and left foot, and his initial rating claim for the back disability that was originally filed on October 18, 1994. Therefore, this issue has been added to the matters on appeal. Thus, based on the available records, the issues as noted on the first page of this decision are correct. The Veteran's representative submitted an informal brief presentation in October 2017 noting that the Veteran's private attorney had impermissibly withdrawn representation in July 2013, violating 38 C.F.R. § 20.608. The Veteran, however, revoked all prior authority to his private attorney when he assigned American Legion as his representative in August 2014. See VA-Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, dated August 2014. Therefore, review of the Veteran's private attorney's actions is inapplicable to this claim. The issues of entitlement to a disability rating in excess of 20 percent for residuals of a gunshot wound to the left foot with reflect sympathetic dystrophy prior to April 3, 2013, and in excess of 80 percent, thereafter; entitlement to a TDIU, to include on an extraschedular basis, effective prior to December 11, 1995; and extraschedular ratings for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral; chronic low back strain with arthritis; residuals of a gunshot wound to the left foot with reflect sympathetic dystrophy, and scar on the left chest, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral do not result in PFTs that show the Veteran's FEV-1 is 56- to 70-percent predicted, or; that his FEV-1/FVC is 56 to 70 percent, or; that his DLCO (SB) is 56- to 65-percent predicted. 2. Effective October 18, 1994 to August 23, 2013, and effective April 13, 2017, the medical findings demonstrate range of motion in the lumbar spine consistent with moderate limitation of motion. 3. Effective August 23, 2013 to April 13, 2017, the medical findings demonstrate range of motion in the lumbar spine consistent with severe limitation of motion, and/ or favorable ankylosis in extension. 4. Effective August 23, 2013, the Veteran has mild neurological impairment in the right lower extremity due to the sciatic nerve. 5. The competent evidence of record shows the Veteran's service-connected chest scar is associated with pain to palpation; and the remaining scars that the Veteran has been rated separately for, in the chest, left foot, and lip, associated with his gunshot wounds and injuries in service, are not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent rating for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.56, 4.73 Diagnostic Code 5321-6843 (2017). 2. Effective October 18, 1994 to August 23, 2013, and effective April 13, 2017, the criteria for a schedular rating of 20 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). 3. Effective August 23, 2013 to April 13, 2017, the criteria for a 40 percent rating, but no higher, for the lumbar spine disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). 4. Effective August 23, 2013, the criteria for a separate 10 percent rating for neurological impairment in the right lower extremity, associated with the lumbar spine disability, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for a rating higher than 10 percent rating for chest scar have not been met, effective October 23, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.41, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C. § 5103 and 5103A (2017) have been met. By correspondence dated in July 2003, July 2005, March 2006, and May 2013, VA notified the Veteran of the information and evidence needed to substantiate the claim. The Veteran has not asserted any prejudice regarding the notice he received in this matter. VA has also satisfied the duty to assist. The claims folder contains service treatment records, private treatment records, VA treatment records, and Social Security Administration (SSA) records. The Veteran has undergone numerous VA examinations dated from November 1994 to July 2017, discussed in more detail below. The examinations include objective findings necessary for rating purposes. Additional examination is not needed. The United States Court of Appeals for Veterans Claims (Court) has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The July 2017 addendum examination report specifically addresses passive versus active range of motion in the lumbar spine. After careful review the Board finds that the examination is adequate under applicable VA regulations and fully captures the functional impact of this disability, and thus, Board finds that the examinations are adequate to rate the claim for the lumbar spine. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The claim was remanded several times for further development. In reviewing the record, the Board finds substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim. II. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 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 disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. A. Residuals of Left Chest Gunshot Wound with History of Pneumothorax The Veteran's gunshot wound residuals to the left chest are rated 20 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5321-6843 (2017) for muscles of respiration and traumatic chest wall defect pneumothorax. The Board notes that the 20 percent rating is the maximum rating available under Diagnostic Code 5321. However, potentially higher evaluations are available for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6843, for traumatic chest wall defect. Under 38 C.F.R. § 4.97, Diagnostic Code 6843, disability evaluations are rated from 0 to 100 percent under the general rating formula for restrictive lung disease, and require the use of pulmonary function testing. A Note to the general rating formula clearly specifies that when, as here, Muscle Group XXI is involved, a separate rating is not available. Therefore, since they cannot be rated separately, the focus of the present appeal is whether the evidence supports a rating under Diagnostic Code 6843 that is higher than the one currently assigned under Diagnostic Code 5321. Under Diagnostic Code 6843, a 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97 , Diagnostic Code 6843. Note (1) following Diagnostic Code 6843 provides that a 100 percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. Note (2) following Diagnostic Code 6843 provides that following spontaneous episodes of pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge. Note (3) following Diagnostic Code 6843 provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales of some limitation of excursion of diaphragm or of lower chest expansion shall be rated as least 20 percent disabling. Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement. Involvement of Muscle Group XXI (Diagnostic Code 5321), however, will not be separately rated. PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required. 38 C.F.R. § 4.96 (d)(1). If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96 (d)(3). If the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96 (d)(7). A November 1994 VA respiratory examination shows that the Veteran was status post gunshot wound to the chest with a left hemopneumothorax in 1967. He complained of chronic shortness of breath, which prevented him from walking more than a quarter of a mile without dyspnea. He could climb approximately one flight of stairs without shortness of breath. Pulmonary function testing showed FVC predicted of 87 percent; FEV-1 predicted of 102 percent; FEV-1/ FVC predicted of 115 percent. These findings were pre-bronchodilator; post-bronchodilator studies were not performed. The next relevant VA examination is not until April 2017. Pulmonary function testing at that time shows post-bronchodilator studies of FEV-1 of 71 percent predicted. It was stated that this test most accurately reflected the Veteran's level of disability. DCLO testing was reportedly normal. After a review of the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran's residuals of left chest gunshot wound with history of pneumothorax is not warranted. The Board finds that the VA examination of record to include PFT testing does not show FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC to 56 to 70 percent, or DLCO (SB) 56-to 65 percent. This is so for the entirety of the appeal period. Here, the evidence shows that at worst, PFT testing was FEV-1 of 71 percent predicted, which is just above the criteria for a 30 percent rating. However, these results do not satisfy the requirements for the next highest rating, as set forth in 38 C.F.R. § 4.97, Diagnostic Code 6843. Therefore, the Board finds that a rating in excess of 20 percent for the residuals of left chest gunshot wound with history of pneumothorax is not warranted. B. Lumbar Spine As noted, the Veteran has a 10 percent rating for his lumbar spine disability, effective October 18, 1994; and a 20 percent rating, effective August 23, 2013. The Board notes that the schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal. First, the rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, were amended effective September 23, 2002. See 67 Fed. Reg. 54,345 -54,349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). More specifically, effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293. See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2017)). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. According to that renumbering, Diagnostic Code 5237 now governs ratings of lumbosacral strain, Diagnostic Code 5239 governs ratings of spondylolisthesis or segmental instability; Diagnostic Code 5242 governs degenerative arthritis; and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome. See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017)). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). Accordingly, the Board will herein review the Veteran's back claim under both the former and revised rating criteria. Effective October 18, 1994, the Veteran's back disability is assigned a 10 percent rating under the former regulations for lumbar strain, 38 C.F.R. § 4.71a, Diagnostic Code 5295. See November 2004 rating decision. The September 2017 supplemental statement of the case considered the revised regulations for the spine. As such, because the RO has considered the Veteran's back disability under the regulations in effect prior to September 2003, as well as under the current regulations, no prejudice results to the Veteran by the Board herein considering such regulation changes in adjudicating his claim. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Specifically, the Veteran is not prejudiced by the Board's reference to, and consideration of, all sets of rating criteria in the adjudication of his claim. Id. If the old criteria are used, the Veteran would be rated under Diagnostic Code 5292, which applied to limitation of motion of the lumbar region of the spine, or Diagnostic Code 5295, which applied to lumbosacral strain. A 10 percent rating is assigned under the old Diagnostic Code 5295 for lumbosacral strain with characteristic pain on motion. In order to receive the next higher 20 percent rating under the old criteria, the evidence must show muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in standing position. A 40 percent rating is warranted for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). For impairment based on limitation of motion, a 10 percent rating is assigned for slight limitation of motion of the lumbar spine; a 20 percent rating is assigned for moderate limitation of motion of the lumbar spine; and a 40 rating is assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height, warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2017). Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As noted above, the United States Court of Appeals for Veterans Claims also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. An April 1995 VA examination report notes that the Veteran had a history of lumbar sympathetic blocks to manage his foot pain. It was noted that he had been shot in the foot and chest with exit wound in the upper back region in Vietnam. X-ray examination showed multi-level degenerative thoracic and lumbar disc disease. Range of motion in the spine shows extension to 15 degrees and forward flexion to 90 degrees. He also had right lateral flexion to 20 degrees, and left lateral flexion to 15 degrees. He was hyperesthetic and dysesthetic from S1 bilaterally down to his coccyx. The examiner commented that the Veteran had thoracic spine and back muscle group imbalance due to the gunshot wound in service. He also had what the examiner believed was lumbar back problems secondary to the foot condition or spinal injections. The impression was chronic back pain. An April 1996 private medical statement notes the Veteran's multiple problems, including low back pain with decreased range of motion. It was the doctor's opinion that the Veteran had these problems secondary to injuries obtained during the Vietnam War. An April 1996 CT scan of the lumbar spine shows L5-S1 degenerative disc disease; vacuum disc phenomena at L5-S1; and no evidence of spinal canal stenosis. The report also noted a posterior disc bulge at L5-S1 measuring about 7mm. In August 1996, a VA neurologic evaluation notes that the Veteran reported that he was thrown off a piece of heavy equipment in service and landed on his back. He was temporarily captured shortly after that and was shot in the left foot and left chest, and severely beaten. He complained of back pain, which was aching and at times severe, radiating from his low back down into his lateral left thigh. The examiner believed that the Veteran had two separate problems: the problems in the left extremity due to the gunshot wound and subsequent development of reflex sympathetic dystrophy; and the low back pain radiating into the thigh, which the Veteran described as severe, aching. The examiner found no evidence of radiculopathy on the examination but also noted that the examination was limited by the intense pain. It was noted that it would be necessary to review his electrodiagnostic studies before a final impression could be made. An August 1996 VA orthopedic examination report showed the Veteran had two specific injuries in service: the first when he was fighting in Vietnam and was a passenger on a bulldozer and was thrown from it injuring his back. He stated that he was then captured by Viet Kong and was shot in the left foot and chest. He had had chronic back pain as a result of both injuries. He had complaints of intermittent and variable lower back pain without radiation into the extremities. Range of motion testing showed flexion to 45 degrees; and extension to 30 degrees. Right and lateral flexion was to 30 degrees. There was no discrete neurologic loss in the lower extremities suggestive of radiculopathy; however, he did have hyperesthesia with any stimulation distal to the left knee. The examiner found that radiculopathy was not present; the diagnosis was chronic lumbosacral strain. The examiner noted that he agreed with the VA neurologist's assessment that an EMG would be useful to determine which of his neurologic signs and symptoms were related to the left foot reflex sympathetic dystrophy; and which could possibly be related to radiculopathy. A November 1996 addendum note shows the examiner's opinion that the major factor in the Veteran's chronic back pain was the original injury in service when he fell off of the bulldozer. It was noted that the reflex sympathetic dystrophy had a minor role in the Veteran's low back complaints; but that he did not have sympathetic dystrophy in the lower back. A December 1996 addendum opinion from the VA neurologist also determined that the Veteran's reflex sympathetic dystrophy did not affect or functionally impair his back. The next VA examination addressing the back is not until August 2013. Range of motion testing showed forward flexion to 70 degrees with pain beginning there. Extension was to 0 degrees due to pain (so there was no extension). There was no additional limitation of motion after repetitive use testing. Neurological testing showed mild radiculopathy in the right lower extremity. The Veteran also underwent examination in April 2017 with an addendum report in June 2017, which showed normal examination of the lumbar spine. Upon review of the medical evidence, the criteria for a 20 percent rating under Diagnostic Code 5292 for moderate limitation of motion of the lumbar spine is warranted prior to August 23, 2013. Specifically, an April 1995 VA examination report shows range of motion of extension to 15 degrees and forward flexion to 90 degrees. He also had right lateral flexion to 20 degrees, and left lateral flexion to 15 degrees. An August 1996 VA orthopedic examination report also shows range of motion testing of flexion to 45 degrees; and extension to 30 degrees. Right and lateral flexion was to 30 degrees. These findings are more contemplated by moderate limitation of motion, rather than slight under Diagnostic Code 5292, prior to August 23, 2013. Severe limitation of motion is not shown, as the Veteran is shown to have flexion to 90 degrees in April 1995 and extension to 30 degrees in August 1996. Overall, these findings do not more closely reflect severe limitation of motion in the lumbar spine. The other diagnostic codes pertaining to the old criteria also do not allow for a rating higher than 20 percent for the Veteran. There is no evidence of severe lumbosacral strain under Diagnostic Code 5295. While there is evidence of osteoarthritic changes and marked limitation of forward bending, there is no evidence of abnormal mobility on forced motion. Nor is there evidence of listing of the whole spine to the opposite side, positive Goldthwaite's sign, or loss of lateral motion. Additionally, there is no evidence of severe intervertebral disc syndrome with recurrent attacks and intermittent relief under Diagnostic Code 5293; ankylosis of the spine under Diagnostic Code 5289; or any residuals of fractured vertebra. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 28th edition, p. 86. Unfavorable ankylosis is a consolidated joint in a position that is not anatomically correct; i.e., not in an upright position. Therefore, a rating of 20 percent, but no higher, is warranted for the lumbar spine disability under Diagnostic Code 5292, effective October 18, 1994 to August 23, 2013. Effective August 23, 2013 to April 13, 2017, the criteria for a 40 percent rating for the lumbar spine are warranted under the revised criteria. Under the General Rating Formula for Diseases and Injuries of the Spine, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. An August 23, 2013 VA examination report shows that range of motion testing showed forward flexion to 70 degrees with pain beginning there. Extension was to 0 degrees due to pain (so there was no extension). There was no additional limitation of motion after repetitive use testing. As there was 0 limitation of motion in extension, this is somewhat akin to ankylosis in the favorable position, i.e., standing upright. The Veteran can still bend forward to 70 degrees of flexion; but at the least, not being able to bend backward without pain would amount to severe limitation of motion under former Diagnostic Code 5292. As impairment akin to unfavorable ankylosis of the entire thoracolumbar spine is not shown, the next higher 50 percent disability rating is not warranted under the revised criteria. A rating higher than 40 percent also is not available under the former criteria for limitation of motion of the spine under Diagnostic Code 5292. An April 13, 2017 VA examination report shows normal range of motion of the spine with no additional limitation of motion after repetitive-use testing, and no evidence of pain on weight-bearing. A July 2017 addendum report shows there was no evidence of pain on passive range of motion or when the joint was in the non-weight bearing position. These findings do not warrant a rating higher than 20 percent for limitation of motion in the lumbar spine disability under the former or revised criteria. The findings also do not meet the criteria for a 20 percent rating; but the 20 percent rating would be protected under 38 C.F.R. § 3.951(b), as a rating of 20 percent or higher has been in effect for the lumbar spine, retroactively to October 18, 1994 to present; and the disability rating cannot be lowered below 20 percent in the absence of fraud. Thus, effective April 13, 2017, a 20 percent rating, but no higher, is warranted for the lumbar spine disability. As for separate findings of neurological impairment, the evidence has been inconsistent as to whether or not the Veteran has radicular pain associated with his lumbar spine disability. Regardless of the origin of the Veteran's neurological complaints, the Veteran has been rated separately for neurological impairment in the left lower extremity since December 11, 1995 for reflex sympathetic dystrophy of the left lower extremity, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The only pertinent evidence prior to December 1995 is an April 1995 VA examination report, which does not conclusively show that a separate rating for neurological impairment due to the lumbar spine disability would be warranted. The report notes that the Veteran had a history of lumbar sympathetic blocks to manage his foot pain. It was noted that he had been shot in the foot and chest with exit wound in the upper back region in Vietnam. X-ray examination showed multi-level degenerative thoracic and lumbar disc disease. He was hyperesthetic and dysesthetic from S1 bilaterally down to his coccyx. The examiner commented that the Veteran had thoracic spine and back muscle group imbalance due to the gunshot wound in service. He also had what the examiner believed was lumbar back problems secondary to the foot condition or spinal injections. The impression was chronic back pain. The record does not show that any additional compensation is warranted due to neurological impairment on the left lower extremity associated with the lumbar spine other than what the Veteran is currently being separately compensated for under Diagnostic Code 8520. As for the right lower extremity, while prior to August 23, 2013, there was not shown any competent medical evidence of neurological impairment in the right lower extremity associated with the lumbar spine disability, most recent examination in August 2013 and April 2017 shows mild radiculopathy in the right lower extremity due to the sciatic nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520 addresses mild incomplete paralysis of the sciatic nerve and assigns a 10 percent rating for this impairment. Therefore, effective August 23, 2013, a separate 10 percent rating is warranted for neurological impairment in the right lower extremity. Examination of peripheral neuropathy in March 2016 did not include the right lower extremity. Neurological impairment in the right lower extremity was negative on examination in April 2017. Nonetheless, all doubt is resolved in the Veteran's favor that the separate compensable rating for right lower extremity neurological impairment is still applicable. Higher ratings based on the criteria for intervertebral disc syndrome do not apply, as the Veteran is not shown to have intervertebral disc syndrome. See, e.g., August 2013 VA examination report. Physician-prescribed bedrest also is not shown in the evidence of record. The Veteran asserts that he is entitled to an increased rating for his lumbar spine disability. His factual recitation as to symptomatology associated with the lumbar spine is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability, and his assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's spine and discussed all relevant details for purposes of rating his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the Veteran's statements as to his functional impairment and finds that the impairment has been considered by the ratings assigned, including the 20 and 40 percent ratings, as well as the separate 10 percent rating for neurological impairment in the right lower extremity, effective August 23, 2013. For all the foregoing reasons, the Board finds that a rating of 20 percent, but not higher, is warranted for the lumbar spine disability prior to August 23, 2013, and effective April 13, 2017; a 40 percent rating is warranted effective August 23, 2013 to April 13, 2017; and a separate 10 percent rating for neurological impairment in the right lower extremity is warranted, effective August 23, 2013. To the extent that higher ratings are not assigned, there are no objective medical findings that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). C. Scar on Left Upper Posterior Chest As noted in the Introduction, the Board assigned a 10 percent rating for the left chest scar in the January 2017 decision under the criteria that were in effect prior to October 23, 2008; and remanded consideration of a rating higher than 10 percent for the chest scar under the criteria, effective October 23, 2008. The criteria for rating skin disabilities were revised, effective October 23, 2008 (during the pendency of this claim/appeal). 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation specifically states that the new criteria apply "to all applications for benefits received by VA on or after October 23, 2008" and that a veteran rated under the skin criteria in effect prior to that date may request review under the clarified criteria. No such request has been made in this case. The Board notes that the 'new' rating criteria can be applied only as of the effective date, however. See VAOPGCPREC 3-2000. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, one or two scars that are painful warrant a 10 percent rating under Diagnostic Code 7804. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. The record shows that the Veteran's service-connected scarring is a result of gunshot wounds to the chest and left foot. Thus, he has scarring on the entry and exit wounds. He also was reportedly hit in the lip with the butt of a rifle in service, and has a resulting scar on his lip. An April 2017 VA examination report notes that in addition to the tender scar on the left chest, the Veteran also had a scar from a gunshot wound to the left foot and a scar from an open lip wound. Specifically, on the left foot, he had three scars measuring 1 cm, 2.5 cm, and 1 cm. On the anterior trunk he had two scars measuring 2 cm and 2.5 cm. On the posterior trunk, he had one scar measuring 1 cm. None of the scars were unstable; and there was only one scar on the left anterior chest that was painful. The Veteran was assigned a 30 percent rating for the disfiguring left upper lip scar in a May 2017 rating decision, effective April 13, 2017. He also was assigned noncompensable ratings for the left foot scar, effective April 3, 2013; and additional scarring on the anterior and posterior chest, effective March 13, 1970. These ratings are not on appeal but the additional scars are potentially relevant under Diagnostic Code 7804, which assigns ratings based on the number of painful or unstable scars. The evidence, however, does not show any impairment associated with the scars other than pain to touch on the one left chest scar, which is contemplated under the 10 percent rating assigned under Diagnostic Code 7804. The chest scars do not involve an area of 929 square centimeters or greater; so a rating under Diagnostic Code 7802 does not apply. There also was no underlying soft tissue damage or any impairment of movement of the chest due to the scarring. Thus, any impairment under Diagnostic Code 7801 is not warranted. The Veteran has a separate rating for impairment under the muscle codes in the chest under 38 C.F.R. § 4.56, which is addressed above. To the extent that the Veteran has contended that his left chest scar is more severely impaired than the 10 percent rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For all the foregoing reasons, the Board finds that there are no objective medical findings that would support the assignment of a rating in excess of 10 percent for the left chest scar. Therefore, entitlement to an increased rating for the back scar is not warranted. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral, is denied. Entitlement to a disability rating of 20 percent, but no higher, for chronic low back strain with arthritis is granted, effective October 18, 1994 to August 23, 2013, and effective April 13, 2017, subject to the rules governing the payment of monetary benefits. Entitlement to a disability rating of 40 percent, but no higher, for chronic low back strain with arthritis is granted, effective August 23, 2013 to April 13, 2017, subject to the rules governing the payment of monetary benefits. Entitlement to a separate 10 percent rating for neurological impairment in the right lower extremity, associated with the lumbar spine disability, is granted, effective August 23, 2013, subject to the rules governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for scar of the left upper chest posterior is denied. REMAND As noted in the Introduction, the Board's prior decision in November 2010, which, in pertinent part, denied entitlement to an evaluation higher than 30 percent for residuals of gunshot wound to the left foot with reflex sympathetic dystrophy, was vacated by the U.S. Court of Appeal for Veterans Claims, pursuant to a Joint Motion for Partial Remand. It noted that discussion of evidence of record regarding the potential applicability of Diagnostic Code 5275, which allows for a 10 percent disability rating for a 11/4-inch to 2-inch shortening of the bones of the lower extremity is warranted. It was also noted that there is evidence of record suggesting that one of the Veteran's legs was shorter than the other. See, e.g., April 1997 VA progress note recording "limb length discrepancy"; and April 1996 letter from Dr. Serrano, a private physician at Hill Road Family Physicians noting that "Patient also has one leg shorter than the other"). See Joint Motion for Partial Remand, p. 4. None of the medical evidence of record specifically describes in detail any measurement of discrepancy in leg length. An August 2013 VA examination report notes that the Veteran does not have a history of leg length discrepancy. However, based on the evidence noted above, this is not so. Remand is warranted to determine whether the Veteran has a leg length discrepancy due to his service-connected residuals of gunshot wound to the left foot; and if so, the measurements of the discrepancy. As noted in the Introduction, although the Veteran is in receipt of a TDIU, effective December 11, 1995, an inferred claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) applies, as part of his increased rating claim for his residuals of gunshot wound to the chest and left foot, and his increased rating claim for the back disability that was originally filed on October 18, 1994. The Veteran has indicated that he has not worked since 1993 due to the residuals of gunshot wound to his chest and foot. See, e.g, VA-Form 21-8940 dated August 1995. Social Security Administration records note that the Veteran stated that he could no longer work as of January 1994 in his trade as he was falling and tripping a lot due to the nerve damage and reflex sympathetic dystrophy, in addition to his back pain. While the Veteran did not meet the schedular criteria for a TDIU prior to December 11, 1995, nonetheless, consideration of 38 C.F.R. § 4.16(b) potentially applies. In addition, since his increased rating claim for residuals of gunshot wound to the left foot is still on appeal, this matter is inextricably intertwined with any inferred claim for a TDIU prior to December 11, 1995. The issues of entitlement to an extraschedular rating for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral; chronic low back strain with arthritis; scar on the left chest; and residuals of a gunshot wound to the left foot with reflect sympathetic dystrophy (the last one which is also remanded) are deferred pending the resolution of the TDIU claim, prior to December 11, 1995. It is "premature for the Board to decline extraschedular consideration where the record was significantly incomplete in a number of relevant areas probative of the issue of employability." Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any relevant VA treatment records for the Veteran's left foot disability dated from April 2016 to present. 2. Ask the Veteran to identify any additional pertinent treatment records for left foot disability, particularly pertaining to any leg length discrepancy. Make arrangements to obtain any records identified. 3. After any additional relevant records are obtained, make arrangements to obtain a supplemental examination and opinion from the VA examiner who provided the April 13, 2017 VA examination regarding whether the Veteran has any leg length discrepancies. The examiner should note the evidence of record suggesting that one of the Veteran's legs was shorter than the other. See, e.g., April 1997 VA progress note recording "limb length discrepancy"; and April 1996 letter from Dr. Serrano, a private physician at Hill Road Family Physicians noting that "Patient also has one leg shorter than the other"). The virtual file (including any additional relevant treatment records) and a copy of this remand must be made available to, and reviewed by, the examiner in conjunction with the examination. The examiner must note that the claims file was reviewed. Any and all indicated studies and tests should be completed. In assessing whether the Veteran has a leg length discrepancy, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any leg length discrepancy is due to the Veteran's service-connected left foot and/ or left leg disability. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Determine whether referral is warranted to determine whether the Veteran is entitled to a TDIU, to include on an extraschedular basis prior to December 11, 1995. The AOJ must also determine whether referral for extraschedular determination is warranted for the Veteran's initial rating claim for residuals of gunshot wound to the pleural cavity, pneumothorax, with damage to muscle group XXI lower left chest and lateral; chronic low back strain with arthritis; left chest scar; and residuals of a gunshot wound to the left foot with reflect sympathetic dystrophy. 38 C.F.R. § 3.321. 5. Thereafter, readjudicate the claim. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an opportunity for the Veteran and his representative to respond. The case should then be returned to the Board for review. 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs