Citation Nr: 18149091 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-42 336 DATE: November 8, 2018 ORDER New and material evidence having been received to reopen a claim of entitlement to service connection for an eye disorder is granted. To this extent only the benefit sought on appeal is allowed. Service connection for tinnitus is granted. An effective date earlier than August 3, 2012, for the establishment of service connection for mood disorder is denied. A rating in excess of 10 percent for service-connected hallux valgus of the right great toe is denied. An earlier effective date of August 20, 2012, for the assignment of a 10 percent rating for service-connected right great toe scar is granted. A rating in excess of 10 percent for service-connected right great toe scar is denied. The reduction of the assigned 40 percent rating for the Veteran’s service-connected back strain residuals, to include degenerative changes (hereinafter, “low back disorder”) to 20 percent was not proper, and the 40 percent rating is restored effective June 1, 2013. REMANDED Entitlement to service connection for a chronic eye disorder is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to a rating in excess of 40 percent for service-connected low back disorder is remanded. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 50 percent for service-connected mood disorder prior to January 17, 2014; and to a rating in excess of 30 percent thereafter is remanded. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not the Veteran’s tinnitus developed as a result of active service. 2. Service connection was previously denied for an acquired psychiatric disorder by a November 2007 rating decision. The Veteran was informed of this decision, and did not appeal. 3. Following the November 2007 rating decision, the record does not reflect the Veteran submitted a new claim of entitlement to service connection for an acquired psychiatric disorder prior to August 3, 2012. 4. The Veteran has been in receipt of the maximum schedular rating available for hallux valgus of the right great toe throughout the appeal period. 5. The competent and credible evidence reflects it is at least as likely as not the Veteran’s right great toe scar was manifested by pain from the August 20, 2012, establishment of service connection. 6. The Veteran’s service-connected right great toe scar has not been manifested by three or more painful scars; unstable scar(s); covers an area or areas of at least 6 square inches (39 sq. cm.); nor does it have any disabling effects not considered under the other potentially applicable Diagnostic Codes to include limitation of motion. 7. The reduction of the assigned 40 percent rating for the Veteran’s service-connected low back disorder to 20 percent was not proper. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Charles v. Principi, 16 Vet. App. 370 (2002); Fountain v. McDonald, 27 Vet. App. 258 (2015). 2. The criteria for an effective date earlier than August 3, 2012, for the establishment of service connection for mood disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for a rating in excess of 10 percent for service-connected hallux valgus of the right great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280. 4. The criteria for an effective date of August 20, 2012, for the assignment of a 10 percent for service-connected right great toe scar have been met. 38 U.S.C. §§ 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for a rating in excess of 10 percent for service-connected right great toe scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.118, Diagnostic Codes 7800-7805. 6. The reduction of the assigned 40 percent rating for the Veteran’s service-connected low back disorder to 20 percent was not proper, and the 40 percent rating is restored. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to August 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the RO determined new and material evidence had been received to reopen the Veteran’s claim of service connection for a chronic eye disorder. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Here, the Board concurs with the determination that new and material evidence has been received in accord with 38 C.F.R. § 3.156(a), and the claim is reopened. However, as detailed below the Board finds that further development is required regarding the underlying service connection claim. The Board also notes with respect to the assigned ratings for the service-connected mood disorder that, in general, the provisions of 38 C.F.R. § 3.105(e) require notice and a delay in implementation of a proposed rating reduction, and that no such action was taken in this case. However, the 50 and 30 percent ratings were both assigned from the initial grant of service connection. In O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) the United States Court of Appeals for Veterans Claims (Court) held that in a "staged" rating context the provisions of 38 C.F.R. § 3.105(e) were not applicable. Similarly, in Singleton v. Shinseki, 23 Vet. App. 376, 379 (2010) the Court held that 38 C.F.R. § 3.344 (Stabilization of disability evaluations) is not applicable in the "staged" rating context, for reasons similar to those expounded in Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) in which the Federal Circuit held that 38 C.F.R. § 3.343 (Continuance of Total Disability Ratings) did not apply in a "staged" rating context). The Court noted that "[n]othing in the plain text of the regulation [38 C.F.R. § 3.344] requires its application in the staged disability rating context." Singleton, 23 Vet. App. at 379. Thus, there is no prejudice to the Veteran in the manner in which he was assigned "staged" ratings in the context of this disability. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). 1. Service connection for tinnitus In this case, the Veteran has indicated that his tinnitus originated as a result of active service. The Board further observes that the Veteran’s lay testimony is of particular importance in this case as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus, lay testimony plays an unusually important role in determining whether service connection is warranted. This is of crucial importance in the case on appeal. The medical evidence of record shows that the Veteran has a current diagnosis of tinnitus. The dispute is over the etiology of the disorder, not its existence. The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The Court recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). As stated above, the Veteran’s lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles. Accordingly, the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and the competent lay evidence of record shows that it began in military service and continued thereafter. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warrant for tinnitus. 2. An effective date earlier than August 3, 2012, for the establishment of service connection for mood disorder The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Service connection was previously denied for an acquired psychiatric disorder by a November 2007 rating decision. The Veteran was informed of this decision, and did not appeal. Moreover, the record does not reflect new and material evidence was physically or constructively of record within the one year appeal period of that decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In pertinent part, no statements appear to be of record from the Veteran regarding this issue during this period. Thus, the denial is final. See 38 U.S.C. §§ 7104 , 7105; 38 C.F.R. §§ 20.1100, 20.1103. Inasmuch as the November 2007 denial of service connection for an acquired psychiatric disorder is final, the effective date for the establishment of service connection for the mood disorder can be no earlier than the claim to reopen. The Board notes that VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the present appeal for an earlier effective date pertains to a period prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen" where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. Here, the record does not reflect the November 2007 rating decision denied service connection for an acquired psychiatric disorder because it was not of compensable degree. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1 (p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155 (a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." In this case, a thorough review of the record available for the Board's review does not reflect the Veteran submitted any written communication from the time of the November 2007 rating decision to August 3, 2012, in which he indicated he was seeking or believed he was entitled to service connection for an acquired psychiatric disorder; i.e., he did not submit a formal or informal application to reopen this claim prior to the current effective date for which service connection has already been established for this disability. Therefore, he is not entitled to an earlier effective date for the establishment of service connection for the mood disorder. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. More recently, the Court held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. A rating in excess of 10 percent for service-connected hallux valgus of the right great toe Diagnostic Code 5280 provides that unilateral hallux valgus that is severe, if equivalent to amputation of great toe is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. In this case, the Veteran has been in receipt of the maximum schedular rating for his hallux valgus of the right great toe throughout the pendency of this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. Further, the Board does not find that the Veteran's hallux valgus would be more appropriately rated under a different Diagnostic Code as the currently applied Code directly contemplates the Veteran's disability. Therefore, a rating in excess of 10 percent is not warranted for this service-connected disability. 4. Entitlement to an effective date earlier than March 20, 2016, for the assignment of a 10 percent rating for service-connected right great toe scar. The Board notes that the Veteran’s claim for an earlier effective date for the assignment of a 10 percent rating for his right great toe scar requires consideration of the criteria for evaluating the scar. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The Court, in Hazan, noted that 38 U.S.C. § 5110(b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. In this case, service connection was established for the right great toe scar, with an initial noncompensable (zero percent) rating, effective August 20, 2012. It does not appear he has disagreed with the effective date assigned for the establishment of service connection. He has disagreed with the 10 percent rating being effective from March 20, 2016, which the RO found was the date of VA examination which first demonstrated the scar was painful. The Board acknowledges that that VA examinations conducted in August 2012 and February 2013 found that the right great toe scar was not painful. However, the Veteran has intimated that the scar has been painful throughout the pendency of this case. As he is competent to describe symptoms such as pain, and the law mandates resolving all reasonable doubt in his favor, the Board finds it is at least as likely as not it was factually ascertainable he had a painful right great toe scar from August 20, 2012. Therefore, he satisfies the criteria for a 10 percent rating during this period in accord with 38 C.F.R. § 4.118, Diagnostic Code 7804. As service connection was not in effect for the right great toe scar prior to August 20, 2012, the 10 percent rating cannot be assigned prior to that date. 5. Entitlement to a rating in excess of 10 percent for service-connected right great toe scar Scar disabilities are evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805. Under the current criteria, 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 right great toe scar clearly does not involve the head, face, or neck, Diagnostic Code 7800 is not for application in the instant case. 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 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. In this case, the record does not reflect the Veteran’s right great toe scar covers an area or areas of at least 6 square inches (39 sq. cm.). For example, the August 2012 and February 2013 VA examinations found the scar did not cover such area or areas. The March 2016 VA examination found that the scar measured 7 cm x 1 cm. As such, the right great toe scar does not warrant even a compensable rating under Diagnostic Code 7801. See 38 C.F.R. § 4.31. 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 Code, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this Code. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. As already noted, the Veteran’s right great toe scar was found to measure 7 cm x 1 cm on the March 2016 VA examination. Therefore, a rating under Diagnostic Code 7802 is not warranted. 38 C.F.R. § 4.31.38 C.F.R. § Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; five or more scars that are unstable or painful warrant a 30 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 DC 7804, when applicable. Id. at Note (3). In this case, the record, including the March 2016 VA examination, reflects the Veteran has a single scar of the right great toe. Stated another way, he does not have three or more painful scars so as to warrant a rating in excess of 10 percent under Diagnostic Code 7804. Further, nothing in the August 2012 and February 2013 VA examinations, nor the medical treatment records, reflects the right great toe scar is unstable. Moreover, the March 2016 VA examination explicitly found the scar was not unstable. Consequently, a rating in excess of 10 percent is not warranted under this Code. Finally, 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. In this case, the Veteran's service-connected right great toe scar has not been shown to have any disabling effects not considered under the other potentially applicable Diagnostic Codes to include limitation of motion. Further, the Veteran is already separated evaluated for functional impairment of the hallux valgus of the right great toe. Therefore, to evaluate the scar on this basis would be a violation of the prohibition against pyramiding. For these reasons, the Veteran's claim for a rating in excess of 10 percent for his service-connected right great toe scar is denied. Reduction 6. Propriety of reduction of assigned 40 percent rating for service-connected low back disorder to 20 percent. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). In this case, a November 2012 rating decision proposed to reduce the assigned 40 percent rating for the Veteran’s service-connected low back disorder. The Veteran was informed of that proposal, including his right to submit additional evidence and to request a hearing. Thereafter, a March 2013 rating decision effectuated the reduction from 40 to 20 percent, effective June 1, 2013. Consequently, the Board must find that proper procedure was followed in reducing the assigned rating. Therefore, the Board must now address the merits of this rating reduction. Regulations "impose a clear requirement that VA rating reductions . . . be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is not proper unless the Veteran's disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran's service-connected low back disorder is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which provides for evaluation under the General Rating Formula for Diseases and Injuries of the Spine. This Formula provides that a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. In this case, the Board notes that the reduction of the assigned 40 percent rating to 20 percent for the Veteran’s service-connected low back disorder was based, in pertinent part, upon a November 2012 VA examination which found his initial forward flexion was to 45 degrees, reduced to 40 degrees after repetitive motion testing. As these results show forward flexion in excess of 30 degrees, it does not appear he satisfies the schedular criteria for a 40 percent rating. However, the Board must find that this examination findings were not adequate for purposes of reducing the assigned rating. In pertinent part, the record, including medical treatment records, reflect the Veteran has been prescribed muscle relaxers and pain medication to treat his service-connected low back disorder. The Court has held that in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, it does not appear the November 2012 VA examination, or the rating decision which effectuated the rating reduction in this case, adequately address the effect of the Veteran’s use of such medications in this case. As such, it appears this examination does not reflect the type of improvement necessary to support a rating reduction in this case. The Board also takes note that since the time of the November 2012 VA examination, and the rating reduction below, the Court has issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations to include the effect of pain on range of motion findings. Here, it does not appear the November 2012 VA examination is in accord with the requirements outlined in Sharp. In view of the aforementioned deficiencies in the November 2012 VA examination, the Board must find that the record does not demonstrate the Veteran’s service-connected low back disorder had the type of actual improvement in his ability to function under the ordinary conditions of life and work as to warrant a rating reduction. Thus, the 40 percent rating must be restored, effective June 1, 2013. REASONS FOR REMAND 1. Entitlement to service connection for a chronic eye disorder is remanded. In this case, the Board notes that the Veteran’s service treatment records reflect he defective vision was noted on his July 1976 separation examination, and no such disability was explicitly noted on his July 1974 enlistment examination. A September 1976 VA examination also included findings of defective vision. Further, more recent outpatient treatment records document floaters in the eyes, to include records dated in February 2015. However, refractive errors of the eyes are congenital or developmental defects and not disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is only possible in such cases when there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In other words, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes, including hyperopia, astigmatism, and presbyopia, even if visual acuity decreased in service. In view of the foregoing, the Board finds that competent medical evidence is required to determine whether the Veteran has an acquired eye disorder other than refractive error, and, if so, whether it was incurred in or otherwise the result of active service. Therefore, a remand is required to accord the Veteran a competent medical examination and opinion to clarify this matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). 2. Entitlement to service connection for hearing loss is remanded. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the Board observes that the claim was denied below because the Veteran did not have a hearing loss disability as defined by 38 C.F.R. § 3.385 as demonstrated by an August 2012 VA audio examination. However, that VA examiner noted that the test results were not valid for rating purposes. As such, the Board must find that this examination is not adequate for adjudication of the Veteran’s hearing loss claim. 3. Entitlement to a rating in excess of 40 percent for service-connected low back disorder is remanded. 4. Entitlement to a rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is remanded. 5. Entitlement to an initial rating in excess of 50 percent for service-connected mood disorder prior to January 17, 2014; and to a rating in excess of 30 percent thereafter is remanded. The record intimates that the Veteran’s service-connected low back disorder, radiculopathy of the right lower extremity, and mood disorder may have increased in severity since the most recent VA examinations of these disabilities. When the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995. Therefore, a remand is required to accord the Veteran new examinations to evaluate the current severity of these service-connected disabilities. 6. Entitlement to a TDIU due to service-connected disability is remanded. The Board observes that resolution of the Veteran’s eye disorder, hearing loss, low back disorder, right lower extremity radiculopathy, and mood disorder claims may affect whether he is entitled to a TDIU. As such, these issues are inextricably intertwined, and the Board will defer adjudication of the TDIU claim until the development deemed necessary for the other claims have been completed. Moreover, as new examination have been deemed necessary for the service-connected low back, right lower extremity radiculopathy, and mood disorder the Board finds that such examination should comment upon the effect these disabilities have upon his employability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records which cover the period from April 2018 to the present. 2. Request the Veteran identify all medical care providers who have treated him for his claimed eye disorder, hearing loss, low back disorder, right lower extremity radiculopathy, and mood disorder from March 2016 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service eye and hearing loss symptomatology; as well as the nature, extent and severity of his back, right lower extremity radiculopathy, and mood disorder symptoms and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an examination by an appropriately qualified clinician to evaluate the nature and etiology of his claimed eye disorder. The examiner should explicitly indicate whether he has an eye disorder other than refractive error. For any such disability found to be present, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service. 5. Schedule the Veteran for an examination by an appropriately qualified clinician to evaluate the nature and etiology of his claimed hearing loss. The examiner should explicitly indicate whether he has a hearing loss disability as defined by 38 C.F.R. § 3.385. For any such disability found to be present, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service. 6. Schedule the Veteran for examinations to assess the severity of his back and psychiatric disabilities. With respect to the service-connected low back disorder, the joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel