Citation Nr: 18143461
Decision Date: 10/19/18	Archive Date: 10/19/18

DOCKET NO. 15-30 698
DATE:	October 19, 2018
ORDER
Entitlement to an initial compensable rating for each the right and left foot prior to May 12, 2015, and a rating in excess of 30 percent for bilateral plantar fasciitis thereafter is denied.
Entitlement to an initial rating in excess of 20 percent for a low back disability prior to May 12, 2015, and a rating in excess of 40 percent thereafter is denied.
Entitlement to a separate rating of 10 percent for radiculopathy of the right lower extremity, effective from January 12, 2015, is granted.  
Entitlement to an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the left lower extremity is denied.
Entitlement to an initial compensable rating for a scar on the posterior trunk associated with the low back disability prior to May 12, 2015, and a rating in excess of 20 percent thereafter is denied.
Entitlement to an initial rating of 20 percent for a scar on the abdomen associated with the low back disability is granted.
Entitlement to an initial compensable rating for a linear scar on the posterior trunk associated with the low back disability is denied.
Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.
REMANDED
Entitlement to service connection for a right knee disorder is remanded. 
FINDINGS OF FACT
1. For the period from October 13, 2011 to May 12, 2015, the Veteran’s plantar fasciitis of the right foot and plantar fasciitis of the left foot with calcaneal spur and arthritis are characterized by pain and bruising on the ankles, which is most closely characterized as moderate in severity.  
2. From May 5, 2015, the Veteran’s bilateral plantar fasciitis disability most nearly approximated extreme tenderness of the plantar surfaces with pain on manipulation and use, which is most closely characterized as severe.  
3. For the period from October 13, 2011 to May 12, 2015, the Veteran’s lumbar spine was manifested by pain with flexion limited to, at most, 55 degrees, without evidence of incapacitating episodes.  There was no evidence of bowel or bladder impairment.
4. From May 12, 2015, the Veteran’s lumbar spine is manifested by pain with flexion limited to 10 degrees, with evidence of incapacitating episodes having a duration of at least 2 weeks but less than 4 weeks during the past 12 months.  There is no evidence of bowel or bladder impairment, or ankylosis.  
5. The competent and credible evidence suggests that the Veteran suffers from radiculopathy of the right lower extremity, which is manifested by mild incomplete paralysis of the sciatic nerve.  
6. For the entire appeals period, the competent and credible evidence shows the Veteran’s radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve. 
7. For the entire period on appeal, the Veteran’s linear scar on the posterior trunk is not painful or unstable, and does not result in limitation of function.  
8. For the entire period on appeal, the Veteran’s abdominal scar is pain and unstable, but does not result in limitation of function.  
9. As the evidence of record only shows the Veteran has two scars associated with his low back disability, there is no evidence to support the assignation of a compensable rating for a third scar on the posterior trunk.  
10. The Veteran’s PTSD is characterized by occupational and social impairment with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment
CONCLUSIONS OF LAW
1. For the period from October 13, 2011 to May 12, 2015, the criteria are not met for initial ratings in excess of 10 percent for each right and left plantar fasciitis.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2017).
2. From May 12, 2015, the criteria are not met for a rating in excess of 30 percent for bilateral plantar fasciitis.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2017).
3. For the period from October 13, 2011 to May 12, 2015, the criteria are not met for a rating in excess of 20 percent for the lumbar spine disability.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017).
4. From May 12, 2015, the criteria are not met for a rating in excess of 40 percent for the lumbar spine disability.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017).
5. The criteria have been met for a separate 10 percent disability rating, and not higher, for radiculopathy of the right lower extremity.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017).
6. The criteria are not met for a rating in excess of 20 percent for radiculopathy of the left lower extremity.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8620 (2017). 
7. For the period from October 13, 2011 to May 12, 2015, the criteria are not met for a compensable rating for the linear scar on the posterior trunk associated with the low back disability.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
8. For the period since May 12, 2015, the criteria are not met for a rating in excess of 20 percent for the linear scar on the posterior trunk associated with the low back disability.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
9. The criteria are met for an initial rating of 20 percent, but no higher, for a scar on the abdomen associated with the low back disability.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
10. The criteria are not met for an initial compensable rating for a linear scar on the posterior trunk associated with the low back disability.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
11. The criteria for a disability rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 2002 to October 2011.  
Increased Ratings
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. §  , u4.1 (2017). 
The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017). 
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40. 
In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.
Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are 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.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).
Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).
A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  Id.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.  
1. Right and Left Foot Disabilities
As an initial matter, the Veteran was granted service connection for left foot plantar fasciitis with calcaneal spur and degenerative arthritis, and right foot plantar fasciitis, rated individually at 10 percent pursuant to Diagnostic Code 5284, for other foot injuries, effective from October 13, 2011.  Thereafter, a July 2015 rating decision discontinued the separate ratings and recharacterized the Veteran’s disability to bilateral plantar fasciitis, rated at 30 percent disabling pursuant to Diagnostic Code 5276, effective from May 12, 2015. 
The Board has considered the implications of the change in diagnostic code and recognizes that any change in a diagnostic code by VA must be explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).  Here, the May 2015 VA examination determined that the severity of the Veteran’s foot disabilities had increased to such a level that rating it bilaterally, as opposed to individually, was more advantageous to the Veteran.  Specifically, and as will be discussed below, each foot does not warrant separate 20 or 30 percent ratings for “moderate” or “severe” injuries, respectively, pursuant to Diagnostic Code 5284.  The currently assigned 30 percent rating for bilateral plantar fasciitis pursuant to Diagnostic Code 5276, affords the Veteran the highest rating available for his disability.  
The Board must now determine whether the modification of the diagnostic code may be considered a severance.  First, the Board notes that service connection for the Veteran’s disability has been in effect since 2011, and, thus, is not protected under 38 U.S.C. § 1159; 38 C.F.R. § 3.951. 
Nonetheless, it has consistently been found that the protection afforded is to the disability and not the diagnostic code used to rate the disability.  See VAOPGCPREC 13-92 (modifications of the Diagnostic Code did not change the protected status of the disability).  Recognizing instances where the Board has rated a Veteran’s disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance.  See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, non-substantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating “did not result in a new rating or the severance of the old rating”). 
In Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from suddenly having that determination stripped.  It found that to determine that the change of the situs of the disability (or the diagnostic code associated with it) was a severance of one service-connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same, would “ill-serve the purpose of the statute.”  The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford v. Brown, 6 Vet. App. 269 (1994).  See Read, supra.
As such, the Board finds that the change in diagnostic codes from Diagnostic Code 5284 to Diagnostic Code 5276 does not constitute a severance.  Instead, the diagnostic code assigned in the July 2015 rating decision, which increased the disability rating for the bilateral foot disability to 30 percent, is a more accurate descriptor of the severity of the Veteran’s service-connected disability and symptoms.  Additionally, the change has not resulted in any reduced benefit to the Veteran but rather, an increase.  Therefore, the assignment of a different diagnostic code does not result in an improper severance of service connection for any manifestation of the Veteran’s disability. 
Turning to the Diagnostic Codes relevant to this appeal, the Rating Schedule does not contain a Diagnostic Code addressing limitation of motion of the foot.  Nevertheless, VA’s General Counsel has determined that Diagnostic Code 5284, pertinent to other foot injuries, is a general Diagnostic Code under which a variety of foot injuries may be rated.  Further, it was noted that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints, and that other injuries may not affect range of motion.  Thus, VA’s General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5284; see 38 C.F.R. § 4.20; see also VAOPGCPREC 9-98. 
In Yancy v. McDonald, 27 Vet. App. 484 (2016), the Court held that application of Diagnostic Code 5284 is limited to disabilities resulting from actual injuries to the foot, but that unlisted conditions may be rated by analogy to injury of the foot under Diagnostic Code 5284.  The Court further rejected arguments that Diagnostic Code 5284 is a “catch-all provision” and held that VA’s interpretation of “injury” as that which resulted from external trauma as opposed to a disability caused by a degenerative process for example, was entitled to deference.  See also 38 C.F.R. § 4.20 (providing that unlisted conditions may be rated by analogy under a closely related disease or injury).
Under Diagnostic Code 5284, foot injuries that are shown to be moderate in severity are assigned a 10 percent disability rating.  Id.  Moderately severe foot injuries are assigned a 20 percent disability rating.  Id.  Severe foot injuries are assigned a 30 percent disability rating.  Id.  Loss of use of the foot warrants a 40 percent rating.
The words “marked,” “severe,” and “pronounced,” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.
Under Diagnostic Code 5276, for acquired flatfoot, a noncompensable evaluation is assigned for mild symptoms relieved by built-up shoe or arch support.  A 10 percent evaluation is assigned for unilateral or bilateral moderate disabilities of the feet with the weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, and pain on manipulation and use of the feet.  A 30 percent evaluation is assigned for bilateral (20 percent for unilateral) severe acquired disabilities of the feet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities.  A 50 percent evaluation is assigned for bilateral (30 percent for unilateral) pronounced acquired disabilities of the feet with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.
As the evidence below will show, the Veteran’s service-connected bilateral foot disability is not manifested by weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toes, or impairment of the tarsal or metatarsal bones.  Accordingly, further consideration of the criteria under Diagnostic Codes 5277-5283 is not warranted.
In connection with his claim for service connection, the Veteran was provided a VA examination in December 2011.  The examiner provided a diagnosis of plantar fasciitis and also noted the presence of a small calcaneal spur and arthritis of the left foot.  The Veteran reported bilateral foot pain and bruising on the inside of the ankles.  Additionally, he reported the constant use of inserts for his boots and shoes for support.  The physical examination did not reveal any other findings.
The Veteran was next examined in May 2015 to determine the severity of his bilateral foot disability.  The Veteran reported severe thick, sharp pain associated with the foot disabilities.  As for functional impairment, he reported limitations on walking, standing, climbing, and exercising.  During the physical examination, the examiner noted pain on use and manipulation of both feet, but no evidence of swelling or characteristic callouses.  Additionally, pain was noted on weight-bearing, during flare-ups, and after repeated use with functional limitations involving walking and standing.  Extreme tenderness of the plantar surfaces was noted, but not improved by the arch supports used by the Veteran for both feet.  There was no evidence of decreased longitudinal arch support, marked deformity, marked pronation, weight-bearing falling over the medial to the great toe, alteration of weight-bearing, inward bowing of the Achilles, or marked inward displacement and spams of the Achilles tendon.  There are no other physical findings noted during this examination.  
The Veteran was most recently examined by VA in February 2017 regarding the current severity of this disability.  The Veteran reported daily pain and stiffness, with the pain in his feet pain in the area of his arches from heel to the ball of his feet, when he walks or stands.  He also uses gel inserts in his shoes.  The Veteran denied suffering from flare-ups.  He also denied any functional loss or impairment as a result of his bilateral foot disability.  Upon physical examination, the examiner noted tenderness to palpation, bilaterally, beneath the metatarsal heads in digits 1 through 5.  There was no evidence of erythema, edema, or discoloration.  The condition does not chronically comprise weight-bearing.  The examiner noted the use of inserts.  Further, pain was noted on examination, but did not cause any functional impairment as the Veteran reported that he does not let the pain prevent him from performing activities.  As for functional loss and limitation of motion, the examiner noted pain on weight-bearing but no evidence of pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or after repeated use.  The examiner described the severity of the bilateral foot disability as moderate.  
The Board also notes that there are VA treatment records associated with the Veteran’s electronic claims file.  However, there is no indication that the Veteran sought additional treatment or medication for his bilateral foot disability.  
Entitlement to an initial compensable rating for each the right and left foot for the period from October May 12, 2015
Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law during the initial period on appeal, the Board finds that the evidence supports the currently assigned 10 percent rating for each the right and left foot, indicative of a moderate disability under Diagnostic Code 5284.  The Board further notes that the Veteran’s reports of bilateral foot pain and bruising on the inside of the is encompassed in the currently assigned 10 percent ratings for each foot.  
As described above, Diagnostic Code 5284 provides for ratings based on the overall severity of the disability.  Here, the Board finds that the bilateral foot symptomatology more nearly approximates that of a moderate disability.  In reaching this conclusion, the Board finds probative the fact that the Veteran experienced foot pain and bruising that requires the constant use of inserts in his boots and shoes. 
However, the Board finds that a rating higher than 10 percent is not warranted.  In this regard, there is no evidence that the Veteran’s bilateral foot disability manifested in moderately severe symptoms as would warrant a 20 percent rating under Diagnostic Code 5284.  The December 2011 VA examination did not reveal the presence of flare-ups of either foot, and there was no evidence of pain on weight-bearing, swelling, heat, redness, stiffness, fatigability, or weakness.  Accordingly, the medical evidence does not show that his foot disability was more than moderate during this initial period.  
The Board also finds that a higher rating under Diagnostic Code 5276 is not warranted.  In this regard, the next higher 30 percent rating is warranted for severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities.  There is no evidence during the period in question that the Veteran’s bilateral foot disability manifested in those symptoms.  In fact, there is no evidence that the Veteran suffers from anything other than the reported pain and bruising.  
No other Diagnostic Codes pertaining to the foot are for application.
Entitlement to a rating in excess of 30 percent for a bilateral foot disability since May 12, 2015
As noted above, the RO, in a July 2015 rating decision, assigned a 30 percent rating under Diagnostic Code 5276 for plantar fasciitis, discontinuing the separate 10 percent ratings that were previously in effect for this disability.  In so doing, the RO reasoned that the May 2015 VA examination showed a worsening of the Veteran’s foot symptoms, and found that the criteria contemplated by the 30 percent rating under Diagnostic Code 5276 most closely matched the Veteran’s foot symptoms.  Specifically, the RO found that the Veteran had extreme tenderness of the plantar surfaces of the feet, pain on use, with symptoms partially relieved by arch supports.  However, a higher, 50 percent rating was not assigned because there was no bilateral involvement with pronounced symptoms, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achilles on manipulation, not improved by orthopedic shoes or appliance.
The Board finds that a rating in excess of 30 percent is not warranted for the period after May 12, 2015 for the Veteran’s bilateral foot disability under Diagnostic Code 5276.  There is no lay or medical evidence, to include the findings of the May 2015 and February 2017 VA examinations, showing that the Veteran has marked pronation, inward displacement, or severe spasm of the tendo-Achilles, as would warrant a 50 percent rating under Diagnostic Code 5276.  The only Diagnostic Code that would afford the Veteran a higher rating is Diagnostic Code 5284, which permits the assignment of a 40 percent rating with actual loss of use of the foot, which the medical evidence in this case does not show.  
In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his bilateral foot disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his feet.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations.  He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating.  With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person.  Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”).
As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
2. Entitlement to an initial rating in excess of 20 percent for a low back disability prior to May 12, 2015, and a rating in excess of 40 percent thereafter.
As an initial matter, the Veteran was rated at 20 percent pursuant to Diagnostic Code 5238, for spinal stenosis and spinal fusion and laminectomy, prior to May 12, 2015.  Effective from May 12, 2015, the RO recharacterized his spine disability as intravertebral disc syndrome (IVDS), pursuant to Diagnostic Code 5243.  
Again, the Board has considered the implications of the change in diagnostic code and recognizes that any change in a diagnostic code by VA must be explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).  The May 2015 VA examination found the Veteran’s back disability is primarily manifested by IVDS.
The Board must now determine whether the modification of the diagnostic code may be considered a severance.  First, the Board notes that service connection for the Veteran’s disability has been in effect since 2011, and, thus, is not protected under 38 U.S.C. § 1159; 38 C.F.R. § 3.951. 
Nonetheless, it has consistently been found that the protection afforded is to the disability and not the diagnostic code used to rate the disability.  See VAOPGCPREC 13-92 (modifications of the Diagnostic Code did not change the protected status of the disability).  Recognizing instances where the Board has rated a Veteran’s disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance.  See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, non-substantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating “did not result in a new rating or the severance of the old rating”). 
In Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from suddenly having that determination stripped.  It found that to determine that the change of the situs of the disability (or the diagnostic code associated with it) was a severance of one service-connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same, would “ill-serve the purpose of the statute.”  The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford v. Brown, 6 Vet. App. 269 (1994).  See Read, supra.
As such, the Board finds that the change in diagnostic codes does not constitute a severance.  Instead, the diagnostic code assigned in the July 2015 rating decision, which increased the disability rating for the low back disability to 40 percent, is a more accurate descriptor of the Veteran’s service-connected disability and symptoms.  Additionally, the change has not resulted in any reduced benefit to the Veteran.  In fact, as it pertains to rating the spine, all diagnoses are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a.  Therefore, the assignment of a different diagnostic code does not result in an improper severance of service connection for any manifestation of the Veteran’s disability. 
The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5238 for spinal stenosis for the period prior to May 12, 2015, and rated under Diagnostic Code 5243 for the period since May 12, 2015.  He believes he is entitled to higher ratings for both periods on appeal.  
Diagnostic Code 5238 and 5243 both direct VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017).
Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 
The General Rating Formula provides a 20 percent rating for 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 spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 
A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 
Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a.  When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula, rating for degenerative arthritis under DC 5003 should also be considered.  38 C.F.R. § 4.71a.
The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (effective September 26, 2003) provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.
Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 
For the Period From October 13, 2011 to May 12, 2015
For the period from October 13, 2011 to May 12, 2015, the evidence of record includes a VA examination dated in May 2011, and service treatment records pertaining to this disability.  
In the December 2011 VA examination, conducted in connection with his claim for service connection, for a lumbar spine disability, the examiner diagnosed the Veteran with spinal stenosis and also noted the prior laminectomy in 2011.  The Veteran reported pain in his back, and burning and numbness in the left hip.  He denied suffering from flare-ups.  Range of motion testing revealed flexion to 60 degrees, with pain at 55 degrees; extension to 20 degrees, with pain; right and left lateral flexion to 20 degrees, with pain, bilaterally; and, right and left lateral rotation to 20 degrees, with pain, bilaterally.  The Veteran was able to perform repetitive use testing resulting in the same range of motion findings.  While there was no additional limitation in range of motion following repetitive testing, the examiner did note additional functional impact on the Veteran as there was less movement and pain on motion, as well as interference with standing, sitting, and/ or weight bearing.  
Additionally, there was no evidence of localized tenderness or pain on palpation, guarding or spasms, or muscle atrophy.  Muscle strength testing was normal but the sensory examination revealed absent or decreased sensation in the left thigh.  The right lower extremity was normal.  Straight leg raising was positive bilaterally, but the examiner only provided a diagnosis of radiculopathy in the left lower extremity.  In this respect, the examiner indicated the Veteran suffers from moderate intermittent pain and paresthesias/ dysesthesias, and mild numbness in the left lower extremity.  No other neurological manifestations were noted to be present.  The examiner did indicate the Veteran suffers from IVDS but without any incapacitating episodes in the last 12-month period.  Finally, the Veteran does not require the use of an assistive device and there is no evidence of ankylosis. 
Additionally, the Veteran’s service treatment records show his continuous complaints of pain associated with his low back disability.  However, the objective range of motion findings in these treatment records are not materially different from the findings noted in the VA examination.   
For the first period on appeal, the Board concludes that the evidence preponderates against the Veteran’s claim for a disability rating in excess of 20 percent for his service-connected low back disability.  In particular, the Board acknowledges the Veteran’s complaints of back pain, which the record clearly documents.  However, the Veteran’s flexion was limited, at most, to 55 degrees, even when considering the reported pain during his December 2011 examination.  He also denied suffering from flare-ups.  
With respect to functional loss, the December 2011 VA examination noted evidence of pain on motion and less motion than normal, but no additional limitations on repetitive motion or functional loss.  Specifically, the examiner noted the Veteran’s reports of pain on flexion beginning at 55 degrees.  Further, even considering the Veteran’s reports of pain and more limited range of motion of the lumbar spine as a result of that pain, his range of motion is still well in excess of 30 degrees, which is required for the next higher 40 percent rating.  Therefore, the Board finds that even when considering the functional limitations of pain or less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 40-percent rating when considering the cumulative picture of his low back disability for the first period on appeal. 
As for whether the Veteran is entitled to a rating in excess of 20 percent rating for IVDS, which requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, the December 2011 VA examiner determined there was no evidence of incapacitating episodes requiring bed rest.  
There is no other medical evidence, as discussed in detail above, which would support the Veteran’s contentions that his lumbar spine disability has increased in severity beyond the currently assigned 20 percent rating for this first period on appeal.  
For the Period Since May 12, 2015
For the period since May 12, 2015, the Veteran is currently rated at 40 percent.  The objective evidence of record for this period includes the reports of May 2015 and February 2017 VA examinations and the available VA treatment records.  
As mentioned, the next higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71, Diagnostic Code 5243.  Alternatively, the next higher rating for IVDS of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks in the past 12 months.  Id.  
During the May 2015 VA examination, the Veteran reported the existence of flare-ups, with reported functional impairment as limited prolonged sitting, standing, lifting, and bending.  Range of motion testing revealed flexion to 15 degrees, with pain at 10 degrees; extension to 10 degrees, with pain at 5 degrees; right and left lateral flexion to 10 degrees, with pain at 5 degrees; and, right and left lateral rotation to 15 degrees, with pain at 10 degrees.  The Veteran was able to perform repetitive use testing resulting in the same range of motion findings.  While there was no additional limitation in range of motion following repetitive testing, the examiner did note additional functional impact on the Veteran as there was less movement and pain on motion, excess fatigability, as well as interference with standing, sitting, and/or weight bearing.  
There was also evidence of localized tenderness or pain to palpation but did not result in abnormal gait, but no guarding or muscle spasms.  As for neurological manifestations, the examiner noted the presence of moderate radiculopathy of the right lower extremity and severe radiculopathy of the left lower extremity, but there was no evidence of other neurological manifestations, such as bowel or bladder impairment.  
Finally, the examiner indicated the Veteran has IVDS and suffered from incapacitating episodes last at least 2 weeks but less than 4 weeks during the last 12 months.  There was no indication of ankylosis or that the Veteran required the use of an assistive device.  
The Veteran was most recently examined in February 2017 to determine the current nature and severity of his low back disability.  The Veteran reported the existence of flare-ups, with reported functional impairment noted to be limiting his work to staying in his office instead of in his car and limiting.  Range of motion testing revealed flexion to 70 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and, right and left lateral rotation to 20 degrees.  The examiner noted there was pain on motion but it did not result in or cause functional loss.  Additionally, there was no evidence of pain on weight-bearing, localized tenderness, or pain on palpation.  The Veteran was able to perform repetitive use testing resulting in no additional loss of function or range of motion.  The examiner did note pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time in that the Veteran moved slower and limits bending, lifting, and getting in and out of cars.  The examination was not conducted during a flare-up, but the examiner found it was medically consistent with the Veteran’s reported functional loss during a flare-up.
There was also no evidence of guarding or muscle spasms.  Muscle strength, sensory examination, and deep tendon reflexes were normal.  Further, straight leg raising was negative, bilaterally.  The examiner further noted the presence of mild radiculopathy of the left lower extremity, but found no other evidence of neurological manifestations, including radiculopathy of the right lower extremity or bowel or bladder impairment.  The examiner indicated the Veteran has IVDS but found that the Veteran did not suffer from incapacitating episodes during the last 12 months.  There was no indication of ankylosis or that the Veteran required the use of an assistive device.  
Additionally, for the period on appeal since May 12, 2015, there are a significant number of VA treatment records.  Unfortunately, the VA treatment records do not contain any evidence that the Veteran suffers from ankylosis or that he has had at least 6 weeks of incapacitating episodes within a 12-month period to warrant the higher 50 and 60 percent ratings, respectively.  
Therefore, even considering any additional functional impact of the Veteran’s lumbar spine as noted above and his reports of pain, the fact remains the Veteran retains motion in his lumbar spine, albeit limited, which precludes a finding of ankylosis.  Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 50 percent rating.
Further, to the extent the May 2015 an February 2017 VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error.  In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application.  Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis).  Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis of other symptoms unrelated to limitation of motion, 38 C.F.R. § 4.40 and 4.45 are not for application.  
As for whether the Veteran is entitled to the higher 60 percent rating, which requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243, the May 2015 VA examiner indicated the Veteran suffers from incapacitating episodes but they did not have a duration of a least 6 weeks.  At most, the Veteran’s incapacitating episodes lasted 2 weeks, but less than 4 weeks.  On the other hand, the February 2017 VA examiner determined the Veteran has IVDS but has not suffered from any incapacitating episodes.  Thus, he is not entitled to the higher 60 percent rating based on incapacitating episodes.  
There is no other medical evidence, as discussed in detail above, which would support the Veteran’s contentions that his lumbar spine disability has increased in severity beyond the currently assigned 40-percent rating. 
In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.  Here, the evidence supports a finding for a separate rating for radiculopathy of the right lower extremity.  However, as the Veteran is also service connected for radiculopathy of the left lower extremity, which is currently on appeal, the Board will address these claims together below.  Regarding any other neurological manifestations, the Veteran has specifically denied the neurological symptoms of weakness or loss of bowel or bladder control.  
In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his low back disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his back.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain and the severity of such during his VA examinations.  He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating.  With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person.  Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”).
As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the sciatic nerve of the left lower extremity.
In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.  For the sake of brevity, the Board will refer to the findings contained in the December 2011, May 2015, and February 2017 VA examinations, as discussed in detail above, in addition to the neurological examinations conducted during the appeals period instead of repeating the evidence below.  
Here, the Veteran is currently rated at 20 percent for radiculopathy of the left lower extremity involving the sciatic nerve, pursuant to Diagnostic Code 8620.  The Board notes the Veteran is also in receipt of a separate 20 percent rating for radiculopathy of the left lower extremity involving the femoral and saphenous nerves under Diagnostic Code 8526.  The Board notes that the Veteran has not filed a notice of disagreement with the effective dates or ratings assigned regarding the neurological impairment of the left lower extremity under Diagnostic Code 8526.  As such, this issue is not presently before the Board.  See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (holding that “[b]ifurcation of a claim generally is within the Secretary’s discretion).
Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520.  For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve.  The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves.  When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree.  Id.  Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.
Under Diagnostic Code 8620, for incomplete paralysis, a 20 percent disability rating is assigned for moderate incomplete paralysis.  If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.”
The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.
In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity at any point during this appeal as there is no evidence to support a finding that the Veteran’s left lower extremity radiculopathy has been manifested by moderately severe incomplete paralysis of the sciatic nerve. 
The Veteran was initially examined in December 2011 in connection with his low back claim.  At that time, the VA examiner noted the Veteran’s muscle strength testing was normal but the sensory examination revealed absent or decreased sensation in the left thigh.  Straight leg raising was positive bilaterally, but the examiner only provided a diagnosis of radiculopathy in the left lower extremity.  In this respect, the examiner indicated the Veteran suffers from moderate intermittent pain and paresthesias/ dysesthesias, and mild numbness in the left lower extremity.  
A December 2011 addendum opinion clarified that the Veteran’s radiculopathy was present only in the left lower extremity and was moderate in severity.  No additional objective findings were included.  
The Veteran underwent a neurological examination in January 2015.  The examiner determined the Veteran’s left lower extremity radiculopathy was characterized by moderate pain, paresthesias/ dysesthesias, and numbness.  The examiner also diagnosed the Veteran with radiculopathy of the right lower extremity.  The examiner concluded that the Veteran has moderate incomplete paralysis of the sciatic nerve of the left lower extremity and mild incomplete paralysis of the sciatic nerve of the right lower extremity.  
The Veteran was again scheduled for VA examinations in May 2015 and February 2017 to assess the severity of his lumbar spine.  During the examinations, the May 2015 VA examiner characterized the Veteran’s radiculopathy of the left lower extremity as severe, and moderate in the right lower extremity.  On the other hand, the February 2017 VA examiner found the radiculopathy of the left lower extremity was mild and the right lower extremity was not impacted.  
In order to address the inconsistencies of the previous VA examination, the Veteran underwent a neurological examination in February 2018.  The Veteran reported numbness, tingling, and a “fire sensation” in his left lower extremity.  Following a physical examination of the Veteran, the examiner determined the left lower extremity radiculopathy is characterized by moderate incomplete paralysis of the sciatic nerve, and the right lower extremity radiculopathy is characterized by mild incomplete paralysis of the sciatic nerve.  
Additionally, the VA and private treatment records dated throughout the appeals period support the findings included in the numerous VA examinations discussed above. 
The Board finds that the radiculopathy of the left lower extremity is best rated as moderate and a higher rating is not warranted.  38 C.F.R. § 4.124a, Diagnostic Code 8620.  In fact, there is no evidence of record to suggest that the Veteran’s left lower extremity radiculopathy is moderately severe, as is required for the next higher 40 percent rating.  
In addressing why the Veteran is not entitled to the next higher rating of 40 percent associated with moderately severe incomplete paralysis, the Board notes that, at no time during the appeal, did the Veteran present symptoms approaching complete paralysis of the middle radicular group.  Specifically, during all of the VA examinations, the Veteran had normal muscle strength and no muscle atrophy.  Additionally, there is no evidence of foot paralysis at any point during the appeals period.  
While the Board notes the May 2015 VA examiner characterized the left lower extremity radiculopathy as severe, and the February 2017 VA examiner determined it was mild, the Board affords the findings in these examinations no probative value when considering the complete disability picture of the Veteran.  Specifically, his radiculopathy of the left lower extremity has been consistently characterized as moderate for the entire appeals period, except for these two examinations that are in complete juxtaposition with each other.  Further, the inconsistency in these examinations was rectified by the February 2018 neurological examining that concluded the radiculopathy of the left lower extremity is most closely characterized as moderate in degree.   
As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
4. Entitlement to a separate rating for radiculopathy of the right lower extremity
As noted above, Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve.  38 C.F.R. § 4.124a (2017).  Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  Id.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve.  Id.  
Here, the Board finds that the Veteran is also entitled to service connection for radiculopathy of the right lower extremity.  In this respect, the Board notes the first diagnosis of radiculopathy of the right lower extremity was during the January 2015 examination, as noted above.  At that time, the examiner found the right lower extremity radiculopathy was best characterized as mild incomplete paralysis of the sciatic nerve.  The February 2018 VA examiner also concluded the right lower extremity radiculopathy was mild in nature.  
As discussed above, with respect to the inconsistent findings in the May 2015 VA examination that found moderate right lower extremity radiculopathy and the February 2017 VA examination that failed to even provide a diagnosis of radiculopathy, the Board does not afford these examinations any probative weight with respect to their findings for radiculopathy.  Instead, the Board has considered the entire disability picture presented during the appeals period and finds that the January 2015 and February 2018 VA examiners conclusions that the right lower extremity radiculopathy is best characterized as mild is more probative.  
Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a separate 10 percent evaluation is warranted for mild radiculopathy of the right lower extremity under Diagnostic Code 8520.  However, the higher 20 percent evaluation is not warranted under Diagnostic Code 8520 for the right lower extremity radiculopathy as the Veteran’s neurological symptoms are not shown to be moderate in degree.  See 38 C.F.R. § 4.124a.  
5. Scars Associated with the lumbar spine disability.
Finally, the Veteran is also in receipt of service connection for three surgical scars associated with his lumbar spine disability as the result of a laminectomy.  
Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805.  
Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118.  As the scars in this case do not involve the head, face, or neck this Diagnostic Code is not for application.
Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear.  38 C.F.R. § 4.118.  Under this Diagnostic Code, a 10 percent rating is to be assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm).  Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating.  Area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) is assigned a 30 percent rating.  Area or areas of 144 square inches (929 sq. cm) or greater is assigned a 40 percent rating.  
Diagnostic Code 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear.  38 C.F.R. § 4.118.  Under this Diagnostic Code, a 10 percent rating is assigned when the scar(s) covers an area or areas of 144 square inches (929 sq. cm) or greater.  No other rating is provided by this Diagnostic Code.  Note (1) states that a superficial scar is one not associated with underlying soft tissue damage.  
As the Veteran’s scars have consistently been characterized as linear, Diagnostic Codes 7801 and 7802 are also not for application.  
Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation.  38 C.F.R. § 4.118.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Id. at Note (2).  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.  Id. at Note (3).  
Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code.  38 C.F.R. § 4.118.  Here, as the evidence does not suggest the Veteran’s scars result in limitation of function, application of this Diagnostic Code is not appropriate.  
Entitlement to an initial compensable rating for a scar on the posterior trunk associated with the low back disability prior to May 12, 2015, and a rating in excess of 20 percent thereafter.
By way of background, the RO granted service connection for the scar on the posterior (back) trunk in an April 2012 rating decision and assigned an initial noncompensable rating, effective from October 13, 2011.  Thereafter, a July 2015 rating decision increased the Veteran’s rating to 20 percent, effective from May 12, 2015.  The Veteran is seeking a higher rating for this scar. 
A December 2011 VA examination noted the existence of this scar, associated with the Veteran’s laminectomy of the lumbar spine.  It was noted to be a well-healed, linear scar, 13.5 centimeters in length.  Additionally, there was no evidence the scar was painful or unstable at the time of the examination.  No other characteristics were noted, including any limitation of function resulting from the scar.  
Thereafter, the May 2015 VA examination, conducted to assess the severity of this posterior trunk scar.  Upon examination, the scar was again found to be linear, 9 centimeters by 1.5 centimeters.  The examiner did not indicate it was either painful or unstable.  No other characteristics were noted, including any limitation of function resulting from the scar.  
The Veteran was most recently examined by VA in February 2017 in the course of evaluating his lumbar spine disability.  However, at that time, the VA examiner found that the Veteran did not have any painful or unstable scars.  No other characteristics were noted, including any limitation of function resulting from the scar.  
The VA treatment records in the claims file do not contain any additional objective findings regarding the scar on the posterior trunk.  
Here, the evidence shows that the Veteran’s scar has been neither painful nor unstable at any point during the appeals period, thereby warranting a noncompensable rating for both periods on appeal.  
In summary, the Board finds that the Veteran’s scar on the posterior trunk warrants a noncompensable rating.  The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted beyond those already assigned because as explained above, the evidence of record does not support higher ratings than already assigned.  In addition, although the RO increased the disability rating to 20 percent, effective May 12, 2015, the Board will not disturb that favorable action. 
In light of the evidence discussed above, the Board finds that the preponderance of the evidence weighs against the assignment of ratings higher than those already assigned for the Veteran’s posterior scar throughout the appeal period.  See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 2 Vet. App. 49, 53 (1990).
Entitlement to an initial rating in excess of 20 percent for a scar on the abdomen associated with the low back disability prior to May 12, 2015, and a compensable rating thereafter.
By way of background, the RO granted service connection for an anterior (front) abdominal scar on the Veteran’s trunk in an April 2012 rating decision and assigned an initial noncompensable rating, effective from October 13, 2011.  In a July 2015 rating decision, the RO increased the Veteran’s rating to 20 percent, effective from October 13, 2011.  That same rating decision then assigned a noncompensable rating effective from May 12, 2015.  The Veteran is seeking higher ratings for this scar. 
A December 2011 VA examination noted the existence of this scar, associated with the Veteran’s laminectomy of the lumbar spine.  It was found to be a linear scar, completely numb on examination and unstable.  The examiner also noted the abdominal scar has had two major infections and has note healed.  The scar was noted to be 15.5 centimeters in length.  Finally, the examiner described the abdominal scar with keloid formation and lower area with 2 to 2.5 centimeters of thin covering and hyperpigmentation.  No other characteristics were noted, including any limitation of function resulting from the scar.  
Thereafter, a July 2012 plastic surgery consultation noted that the scar was also painful.  
The Veteran was reexamined by VA in May 2015 to determine the current nature and severity of his abdominal scar.  The Veteran reported that the abdominal scar opens and is painful.  The examiner noted that the Veteran has one scar that is painful and unstable, located on the anterior abdomen.  The length of the linear scar was 16 centimeters by 4 centimeters.  No other characteristics were noted, including any limitation of function resulting from the scar.  
The Veteran was most recently examined by VA in February 2017 in the course of evaluating his lumbar spine disability.  However, at that time, the VA examiner found that the Veteran did not have any painful or unstable scars.  No other characteristics were noted, including any limitation of function resulting from the scar.  
The VA treatment records in the claims file do not contain any additional objective findings regarding the scar on the abdomen.  
Here, the evidence shows that the Veteran is entitled to a 20 percent rating for the entire appeals period.  The May 2015 VA examination found that the scar on the abdomen is both painful and unstable, thereby warranting a 20 percent rating pursuant to Diagnostic Code 7804.  However, a rating in excess of 20 percent is not warranted at any point during the appeal as the Veteran does not have 5 or more scars that are unstable or painful.  
In summary, after considering all of the applicable diagnostic codes, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports the assignment of a 20 percent rating, but no higher, under Diagnostic Code 7804 for a scar on the abdomen that is both unstable and painful for the entire period on appeal.  The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted beyond the currently assigned 20 percent rating.  
Entitlement to an initial compensable rating for a linear scar on the posterior trunk associated with the low back disability.
The Board notes that the Veteran is also in receipt of a noncompensable rating for a linear scar on the posterior trunk associated with the low back disability that appears to be unrelated to the two previously discussed scars.  However, there is no evidence to suggest a third scar exists as a result of the Veteran’s laminectomy on the lumbar spine.  In this respect, the December 2011, May 2015, and February 2017 VA examinations all refer to only two scars.  Consequently, there is no evidence to support a finding that the Veteran is entitled to a compensable rating.  
The claim for an initial compensable rating for a linear scar on the posterior trunk is denied.  See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 2 Vet. App. 49, 53 (1990).
6. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD).
The Veteran is currently rated at 70 percent for his PTSD.  However, he believes he is entitled to a 100 percent rating for the entire appeals period.  
The Veteran’s PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411.  When rating psychiatric disorders, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  
Nevertheless, under the General Rating Formula, the criteria for a 70-percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.
The criteria for a 100-percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.
In evaluating the evidence, the Board also considers the various Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Diagnostic and Statistical Manual Of Mental Disorders (4th ed. 1994) (DSM-IV).  While the GAF scale was removed from the DSM-5, the GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability under the DSM-IV.  Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  VA implemented DSM-5, effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014.  See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014).  As the Veteran’s increased rating claim was originally certified to the Board in October 2015, the DSM-IV is not for application in this case.
As relevant to this case, in Golden v. Shulkin, 29 Vet. App. 221, 226 (2018), the Court of Appeals for Veterans Claims (Court) noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” Id.  Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court held that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.  Id.  The Court further held, “It makes little sense to impose a heightened reasons-or-bases requirement by obligating the Board to discuss how the American Psychiatric Association’s rejection of GAF scores should affect the weight of such evidence.  Instead, the Court provides far simpler guidance: the Board should not use such evidence at all when assigning a psychiatric rating in cases where the DSM-5 applies.”  Id.  Thus, the Board will afford no probative value to the GAF scores mentioned in the record, and does not consider them for purposes of assigning a psychiatric rating in this appeal.
In December 2011, the Veteran was provided a VA examination in connection with his claim for service connection for this claim.  The Veteran endorsed multiple psychiatric symptoms including depression, anxiety, panic attacks more than one a week, hypervigilance, mild memory loss, disturbances in sleep and motivation, impaired judgement and abstract thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control with unprovoked irritability with periods of violence, and an inability to establish and maintain effective relationships.  However, the Veteran denied gross impairment in thought processes or communication, delusions, hallucinations, suicidal or homicidal ideations, intermittent inability to perform activities of daily living, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.  The examiner determined that the Veteran met the DSM-IV stressor criteria and the criteria for a diagnosis of PTSD as a result of his combat experience resulting in occupational and social impairment with reduced reliability and productivity.  
In May 2017, the Veteran was reexamined by VA to determine the current severity of his service-connected PTSD.  The Veteran reported the same symptoms as previously noted in the December 2011 examination including sleep problems, frequent panic attacks, and mild memory loss.  He reported good relationships with his family but said that his symptoms currently cause intermittent problems in those relationships.  Additionally, he is currently employed and reported no problems as his boss allows him to set his own schedule and work by himself.  There were no additional symptoms endorsed by either the Veteran or noted by the examiner indicating an increase in severity.  In fact, the Veteran reported that his PTSD symptoms have persisted continuously since his last examination, but that he has learned to manage them more effectively as a result of the mental health treatment and medication received since 2011.  
The claims file also contains the VA mental health treatment records dated throughout the pendency of this appeal.  The treatment records are reflective of the symptoms already discussed concerning the severity of the Veteran’s PTSD in his multiple VA examinations.  However, these records do not contain any objective indication that the Veteran suffers from suicidal or homicidal ideations, more severe memory loss than currently noted, delusions, or hallucinations.   
Following a review of the lay and medical evidence, the Board concludes that the Veteran’s PTSD is productive of the currently assigned criteria for a 70 percent rating.  In reaching this determination, the Board finds his PTSD has been manifested by occupational and social impairment with deficiencies in most areas due to his very frequent panic attacks, depressed mood, interruptions in sleep, impaired impulse control with irritability, difficulty in adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, and mild memory loss.  These symptoms have been consistently reported by the Veteran throughout the pendency of his appeal.  
The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443.  When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms.  Vazquez–Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  
The Board further finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period.  The evidence does not show that the Veteran has total occupational and social impairment.  The Veteran has never attested to suffering from hallucinations, delusions, suicidal or homicidal ideations, gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or suffering from memory loss for names of close relatives, own occupation, or own name.  In fact, to the contrary, he has repeatedly denied the majority of the symptoms above required for the higher 100 percent ratings.  
In reaching the above conclusions, the Board has not overlooked the Veteran’s and other lay statements found in the record.  In this regard, the Veteran is credible to report on what he has seen and how he acts/feels.  The Veteran is also certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  However, the Board finds more competent and credible the medical opinions provided by the VA examiners, as discussed above, in rendering a decision as to the severity of the Veteran’s PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period.
As a preponderance of the evidence is against the award of a higher initial rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
REASONS FOR REMAND
1. Entitlement to service connection for a right knee disorder is remanded.
The Veteran is seeking entitlement to service connection for a right knee disorder that he claims is due to injuries sustained during his military service.  
As an initial matter, the Board notes that the Veteran has qualifying service in the Iraq during the Gulf War.  As such, VA must consider whether service connection is warranted for his claimed disorder as due to a qualifying chronic disability or an undiagnosed illness related to his service in the Persian Gulf.  
In this regard, the Board notes that under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran for disability due to undiagnosed illness and medically unexplained chronic multisymptom illness.  Pursuant to the regulation, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 38 C.F.R. § 3.317(a)(1)).  For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 
In December 2011, the Veteran underwent a VA examination.  At the time of this examination, the examiner noted the Veteran’s report of a right knee strain in 2005 during his active duty, but failed to provide a current diagnosis.  In reviewing the evidence of record, however, the Board notes that the Veteran’s service treatment records also include a report of localized pain in the knee joint in November 2007.  As such, the Board finds this examination is not probative.
The Board also acknowledges that the Court has previously held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  However, the Federal Circuit has recently found that pain alone can be a disability.  Specifically, in Saunders v. Wilkie, 886 F.3d 1356 (2018) held that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability.  The Federal Circuit did emphasize that they were not holding that a veteran could demonstrate service connection “simply by asserting subjective pain.  To establish the presence of a disability, the veteran will need to show that the pain reaches the level of functional impairment of earning capacity.”  In other words, subjective pain in and of itself will not establish a current disability.  Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain.
The December 2011 VA examination was also conducted prior to the Federal Circuit’s holding in Saunders, supra.  As such, the Board is concerned the Veteran was not accorded an examination that is consistent with the current legal criteria, nor had the opportunity to address his claim in light of the Federal Circuit’s holding.  Consequently, the Board concludes this should be remanded to accord the Veteran a new examination that takes into account the criteria set forth in Saunders, and to provide the Veteran the opportunity to present evidence as a result of that holding.
Based on the reasons noted above, the Board finds that a new VA examination must be provided.  Barr v. Nicholson, 21 Vet. App. 303 (2007).
The matters are REMANDED for the following action:
1. Obtain and associate with the claims file any VA or private treatment records relevant to the claims currently on appeal dating from March 2018 to the present.  All actions to obtain the requested records should be documented fully in the claims file.
2. Schedule the Veteran for a VA examination to address the nature, extent, onset, and/or etiology of the claimed right knee disorder.  The examiner should review the claims file and note this review in the report.  The examiner should provide an explanation or rationale for each opinion provided.
(a.) The examiner must first confirm a whether there is a currently diagnosed right knee disorder.  The examiner must include a discussion of the Veteran’s symptoms in rendering a diagnosis.  
(b.) If the examiner provides a diagnosis, the examiner must state whether it is at least as likely as not that the diagnosed fright knee disorder is related to or had its onset in service or is otherwise related to service.  In doing so, the examiner must acknowledge and discuss any lay report of recurrent symptoms since service.
(c.) If the examiner finds the Veteran’s right knee symptoms cannot be attributed to a known diagnosis or if the examiner finds that the Veteran has a medically unexplained chronic multi symptom illness, the examiner should indicate if the symptoms are chronic (i.e., have they existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period) and the examiner should indicate if they have become manifest to a compensable degree at any time after his military service, or were first manifest in service.
The claims file, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical and other history.  
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The designated examiner should additionally consider that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and, instead, relied on the absence of evidence in the Veteran’s STRs to provide a negative opinion.
 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Berry, Counsel