Citation Nr: 18150684 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-33 590 DATE: November 15, 2018 ORDER Entitlement to service connection for lumbar scoliosis is dismissed. Entitlement to service connection for a right knee disorder is dismissed. Entitlement to service connection for gluteal fasciitis is dismissed. Reconsideration of service connection for left hip arthritis is granted. Entitlement to service connection for left hip arthritis is denied. Prior to April 17, 1995, a disability rating for the service-connected lumbar spine disability of 20 percent, but not higher, is granted. From April 17, 1995, to October 8, 2013, a disability rating for the service-connected lumbar spine disability of 20 percent, but not higher, is granted. Since October 8, 2013, a disability rating for the service-connected lumbar spine disability in excess of 20 percent is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity neurological impairment is denied. Entitlement to a disability rating in excess of 20 percent for left lower extremity neurological impairment is denied. Entitlement to a compensable disability rating for the service-connected lumbar surgical scars is denied. Entitlement to a rating in excess of 10 percent for right hip limitation of extension is denied. Entitlement to a compensable disability rating for right hip limitation of flexion is denied. Entitlement to a compensable disability rating for the service-connected right hip/thigh limitation of motion, other than flexion or extension, is denied. TDIU is granted. FINDINGS OF FACT 1. On the transcript of the Board hearing, the Veteran withdrew the appeal of entitlement to service connection for scoliosis. 2. On the transcript of the Board hearing, the Veteran withdrew the appeal of entitlement to service connection for a right knee disorder. 3. On the transcript of the Board hearing, the Veteran withdrew the appeal of entitlement to service connection for gluteal fasciitis. 4. Entitlement to service connection for left hip arthritis was denied in a May 1994 decision; at that time, no element of service connection was established; VA subsequently received service treatment records not previously of record. 5. Left hip arthritis is not related to service. 6. Prior to April 17, 1995, the service-connected lumbar spine disability was manifested by moderate intervertebral disc syndrome with recurring attacks. 7. From April 17, 1995, to October 8, 2013, the service-connected lumbar spine disability was manifested by moderate intervertebral disc syndrome with recurring attacks. 8. Since October 8, 2013, the service-connected lumbar spine disability has been manifested by painful motion with forward flexion that exceeds 30 degrees without incapacitating episodes of intervertebral disc syndrome. 9. The service-connected right lower extremity neurological impairment has been manifested by moderate incomplete paralysis. 10. The service-connected left lower extremity neurological impairment has been manifested by moderate incomplete paralysis. 11. The service-connected lumbar surgical scars have been asymptomatic. 12. The service-connected right hip limitation of extension has been manifested by normal range of motion. 13. The service-connected right hip limitation of flexion has been manifested by range of motion greater than 45 degrees. 14. The service-connected right hip/thigh limitation of motion, other than flexion or extension, has been manifested by normal range of motion. 15. The Veteran’s service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for scoliosis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of entitlement to service connection for a right knee disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal of entitlement to service connection for gluteal fasciitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 4. The May 1994 RO rating decision is not final with respect to entitlement to service connection for left hip arthritis. 38 U.S.C. § 7105 (West 2014). 5. The criteria for entitlement to service connection for left hip arthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 6. Prior to April 17, 1995, the criteria for a disability rating of 20 percent for the service-connected lumbar spine disability were met; the criteria for a rating higher than 20 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (in effect prior to September 23, 2002). 7. From April 17, 1995, to August 8, 2013, the criteria for a disability rating of 20 percent for the service-connected lumbar spine disability were met; the criteria for a rating higher than 20 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (in effect prior to September 23, 2002). 8. Since August 8, 2013, the criteria for a disability rating in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 9. The criteria for a disability rating in excess of 20 percent for right lower extremity neurological impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 10. The criteria for a disability rating in excess of 20 percent for left lower extremity neurological impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 11. The criteria for a compensable disability rating for the service-connected lumbar surgical scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7805 (2017). 12. The criteria for a rating in excess of 10 percent for the service-connected right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2017). 13. The criteria for a compensable disability rating for the service-connected right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2017). 14. The criteria for a compensable disability rating for the service-connected right hip/thigh limitation of motion, other than flexion or extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253 (2017). 15. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from January 1981 to December 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2018, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of her claims and she was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is associated with the claims file. The issue of TDIU entitlement is being considered as a component of the increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). VA added additional relevant treatment records to the claims file subsequent to the most recent adjudication of her appeal by the agency of original jurisdiction (AOJ), and the Veteran provided a written waiver of initial adjudication by the AOJ of any evidence added to the claims file subsequent to the Statement of the Case. Withdrawn Issues Entitlement to service connection for lumbar scoliosis. Entitlement to service connection for a right knee disorder. Entitlement to service connection for gluteal fasciitis. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204. During the June 2018 Board hearing, the Veteran, through her attorney, explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to service connection for lumbar scoliosis, a right knee disorder, and gluteal fasciitis. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed, through her attorney, that she was requesting a withdrawal as to those appeals. See Hearing Transcript at 2. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In light of the withdrawal of the appeal of these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review them. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). As the appeal has been withdrawn, the Board finds that dismissal is appropriate. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Reopening/reconsideration of entitlement to service connection for left hip arthritis. In a May 1994 rating decision, VA denied service connection for a left hip disorder. Although notified of her right to appeal that decision, the Veteran did not file an appeal or submit additional evidence within one year of the decision. See 38 C.F.R. § 20.200. The May 1994 rating decision is the last disallowance on any basis. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). At the time of the May 1994 decision, the evidence of record did not substantiate any element of a service connection claim. Notably, the service treatment records could not be obtained and were not of record. Since the May 1994 decision, the service treatment records have been obtained. Accordingly, the Board concludes that reconsideration of the May 1994 decision is warranted. 38 C.F.R. § 3.156(c). Entitlement to service connection for left hip arthritis. The Veteran asserts that her left hip arthritis was incurred or aggravated on a secondary basis, due to her service-connected lumbar spine disorder and the effects of surgery. She testified that a BAK cage was installed on the left side of her lumbar spine to stabilize the spine, and that this caused the left hip arthritis. Service treatment records do not reveal an injury or disease of the left hip in service. This is consistent with the Veteran’s assertions that her disability was incurred secondary to the service-connected lumbar spine disorder. There is no medical opinion that purports to relate a current left hip disability to service or to a service-connected disability. The only evidence in favor of this theory comes from the Veteran’s lay observations. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that relating a current diagnosis of a disease process such as arthritis to service or to a service-connected disability is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge and training and is not capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the claimed left hip arthritis and service or a service-connected disability. The Board also notes that, while arthritis is a presumptive chronic disease, there was no notation of arthritis in service; and, there is no manifestation of left hip arthritis to a degree of 10 percent or more within 1 year of service separation. Accordingly, service connection for left hip arthritis is not presumed. In sum, the Board finds that current left hip arthritis is not related to service or to a service-connected disability. In light of this finding, the Board concludes that service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Entitlement to a disability rating in excess of 20 percent for the service connected lumbar spine disability since October 8, 2013; in excess of 10 percent from April 17, 1995, to October 8, 2013; in excess of 0 percent prior to April 17, 1995. Entitlement to a disability rating in excess of 20 percent for right lower extremity neurological impairment. Entitlement to a disability rating in excess of 20 percent for left lower extremity neurological impairment. The current appeal arises from a claim of entitlement to service connection for a lumbar spine disability that was received at the RO on December 14, 1993. That claim was initially denied, but was reconsidered in an April 2010 rating decision, based on receipt of additional service records. Service connection was granted for degenerative disc disease in that decision, and staged initial ratings were assigned as follows: A rating of 0 percent was assigned effective December 14, 1993; and, a rating of 10 percent was assigned effective October 29, 2009, the date of receipt of the application to reopen. In a November 2013 rating decision, a rating of 20 percent was assigned for the lumbar spine disability, effective October 8, 2013, and a rating of 10 percent was assigned effective April 17, 1995. In the November 2013 rating decision, service connection was also granted for bilateral lower extremity radiculopathy and initial disability ratings of 20 percent were assigned for each lower extremity under Diagnostic Code 8520, effective October 8, 2013. Effective September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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 disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include lumbosacral strain (Diagnostic Code 5237). A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 rating of 10 percent is assigned with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). Effective September 23, 2002, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a rating of 60 percent with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; a rating of 40 percent requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; a rating of 20 percent requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a rating of 10 percent requires incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 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. See 38 C.F.R. § 4.71a. Prior to September 23, 2002, intervertebral disc syndrome was assigned a rating of 60 percent if pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. A rating of 40 percent was assigned if severe with recurring attacks and intermittent relief. A rating of 20 percent was assigned if moderate with recurring attacks. A rating of 10 percent was assigned for a mild condition. A rating of 0 percent was assigned for postoperative, cured condition. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under Diagnostic Code 8520, a rating of 80 percent is available for complete paralysis such that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A rating of 60 percent is available for incomplete paralysis that is severe, with marked muscular atrophy. A rating of 40 percent is available for incomplete paralysis that is moderately severe. A rating of 20 percent is available for incomplete paralysis that is moderate. A rating of 10 percent is available for incomplete paralysis that is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A December 2, 1996, Clinical Note reveals there had been no significant problems with the Veteran’s back since the prior February. However, several days prior to the visit, she was painting in her house on a ladder when she almost fell. She had to suddenly lurch to break her fall. Since that time, she had a recurrence of her usual lumbo-sacral discomfort, with some radiation into the anterior thighs (Record 01/04/2010 at 4). A March 14, 1997, MRI shows a herniated disc at L5-S1, with mild to moderate narrowing in the spinal canal diameter. There was also mild bulging of discs at L3-4 and L4-5, without herniation (Record 01/04/2010 at 11). A September 10, 1997, Clinical Note reveals a long history of back discomforts with herniated nucleus pulposus at L5-S1, with waxing and waning symptoms. The Veteran went to lift an object several days prior and had intense lumbosacral spine discomfort with pain radiating down the lateral aspects of her thighs, bilaterally (Record 01/04/2010 at 3). A December 31, 1997, Clinical Note reveals the Veteran underwent surgery on L5-S1 in October 1997 had done quite well subsequently (Record 01/04/2010 at 10). The report of a January 2010 VA Examination reveals a history of back diagnosis since 1991. She reported limitation in walking—she could walk 2 miles—and it would take 1 hour to accomplish this. She reported that she had experienced falls due to the spine condition. She reported stiffness, spasms, decreased motion, and paresthesia. The pain would travel to the front of both legs and hips. She reported no incapacitating episodes in the prior 12 months. Forward flexion was measured to 90 degrees with onset of pain at 90 degrees. Extension was measured to 30 degrees with onset of pain at 30 degrees. Lateral flexion was measured to 30 degrees, bilaterally, with onset of pain at 30 degrees. Rotation was measured to 30 degrees, bilaterally, with onset of pain at 30 degrees. After 3 repetitions, there was no change in range of motion. Examination revealed no sensory deficits from L1-S1. There were no sensory deficits of S1. There was no lumbosacral motor weakness. The lower extremity reflexes were 2+ with no signs of pathologic reflexes. There were no signs of lumbar intervertebral disc syndrome (Record 01/26/2010). The report of a November 2013 VA Spine Examination reveals a diagnosis of degenerative disc disease. The Veteran did not report any flares. Forward flexion was measured to 40 degrees; extension was to 10 degrees; right lateral flexion was measured to 20 degrees; left lateral flexion was measured to 15 degrees; right rotation was measured to 10 degrees; and left rotation was measured to 15 degrees. Pain was noted at the extents of motion. There was no change after 3 repetitions. Lower extremity muscle strength was mostly normal, but was reduced in hip flexion. There was no atrophy. Reflexes and sensation were normal. The Veteran reported severe pain in the lower extremities. There were no incapacitating episodes of intervertebral disc syndrome. The examiner assessed moderate lower extremity radiculopathy, bilaterally. The impact on employment was that the Veteran would have difficulty in duties involving prolonged standing, twisting, bending, or heavy lifting (Record 11/08/2013 at 24). The report of a March 2017 VA Spine Examination reveals a diagnosis of degenerative disc disease. The Veteran complained of daily pain in the low back with radiating pain to the bilateral hips and lower extremities. On examination, forward flexion was measured to 70 degrees (60 degrees after 3 repetitions); extension was measured to 20 degrees (10 degrees after 3 repetitions); lateral flexion was measured to 20 degrees, bilaterally; and lateral rotation was measured to 30 degrees, bilaterally. There was no change in lateral flexion or rotation after 3 repetitions. While guarding was noted, it did not result in abnormal gait or spinal contour. Lower extremity muscle strength was full, with no muscle atrophy. Lower extremity reflexes were normal. Sensation was decreased in the lower leg/ankle and feet/toes. Straight-leg raise testing was negative bilaterally. The Veteran was assessed as having mild radiculopathy, bilaterally (Record 03/28/2017). The report of a March 2017 VA Peripheral Neuropathy Examination reveals the Veteran’s complaint of pain radiating to the bilateral hips with walking; radiculopathy and numbness and tingling in the both extremities, especially with prolonged sitting. The Veteran stated that she is uncertain whether the radiating pain is from the hips or from her back, but believes that it is from her back (Record 03/28/2017). After a review of all of the evidence, the Board finds that the criteria for a 20 percent rating were more nearly approximated than were the criteria for 10 percent rating during the period prior to October 8, 2013, and were more nearly approximated than were the criteria for a 0 percent rating during the period prior to April 17, 1995. In so finding, the Board finds that the evidence substantiates a moderate condition with recurring attacks, as demonstrated by the evidence of disc herniation as early as 1992, and the record of recurring attacks in December 1996 and September 1997, as well as the notation at that time of waxing and waning symptoms. To the extent of any remaining doubt, the Board resolves such doubt in favor of the claim. Regarding the applicability of the pre-amended criteria, while the current criteria cannot be applied prior to their effective date, the pre-amended criteria may be applied after the effective date of the current criteria for claims that were pending at the time of the amendment. In this case, VA has found that the 1993 claim remained pending and has been reconsidered. The Board further finds that the criteria for a rating in excess of 20 percent are not more nearly approximated than are the 20 percent criteria at any time pertinent to the appeal. The range of motion findings for a 40 percent rating have not been demonstrated, as there is no finding of forward flexion being limited to 30 degrees or less, and no finding of favorable ankylosis of the thoracolumbar spine. In addition, the Veteran is not shown to have incapacitating episodes of intervertebral disc syndrome, with bed rest prescribed by a physician and treatment by a physician. Finally, the Board finds that the Veteran’s condition has not approximated severe intervertebral disc syndrome, with recurring attacks and with little intermittent relief. Rather, the records reflect that flares were occasional and brought on by specific injuries and activities, but were also shown to be subject to periods of quiescence, such as at the time of the January 2010 VA examination, where there were no signs of intervertebral disc syndrome. The Board also finds that the Veteran’s lower extremity radiculopathy has not been characterized in terms of severe or moderately-severe incomplete paralysis of the sciatic nerve. The Board considers the findings in November 2013 and March 2017 to be probative evidence of no greater than moderate incomplete paralysis of the sciatic nerves, as supported by findings of full muscle strength without atrophy, as well as normal reflexes, sensation, and negative straight-leg raise testing. The Board acknowledges the Veteran’s contention that the March 2017 VA examination was inadequate as the examiner spent very little time with her and did not use appropriate tools to measure range of motion. However, the Board finds that the examination report reflects that an adequate examination was conducted. The Board presumes that any medical professional designated to conduct an examination is competent to conduct the examination and to report his or her findings accurately. The March 2017 examination appears to be compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report includes all pertinent complaints, findings, and diagnosis, and includes the Veteran’s lay description of her symptoms and functional impairment. Accordingly, the Board finds that a remand for additional examinations is not necessary. In sum, the Board finds that assignment of a disability rating of 20 percent is appropriate for the entire period on appeal for the service-connected lumbar spine disorder. However, the criteria for a rating in excess of 20 percent have not been met for any period, and are not more nearly approximated than are the criteria for a rating of 20 percent. The Board also finds that the criteria for a rating higher than 20 percent have not been met for either the service-connected right and left lower extremity radiculopathy. To the extent any higher ratings are sought, the Board finds that the preponderance of the evidence is against these claims. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a compensable disability rating for the service-connected lumbar surgical scars. In a November 2013 rating decision, service connection was granted for lumbar surgical scars and an initial disability rating of 0 percent was assigned under Diagnostic Code 7805, effective October 8, 2013. The rating criteria for the skin have been amended, effective August 13, 2018. These amendments do not directly affect Diagnostic Code 7805. They introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. Pre-amended Diagnostic Code 7800 applies to scars of the head, face, or neck, which is not appropriate for the Veteran’s surgical scars. Pre-amended Diagnostic Codes 7801, and 7802 apply to scars that are nonlinear, and are not appropriate for the Veteran’s linear surgical scars. Under Diagnostic Code 7804, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable Under Diagnostic Code 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, are evaluated on the basis of any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. The report of a February 2017 VA Scars Examination reveals that no scars of the trunk or extremities are painful. There are also no unstable scars. There is a scar of the right lateral anterior hip, which is 11 centimeters and linear. There is a scar of the anterior trunk which is 17 x 1 centimeters. There was no disfigurement or limitation of function (Record 02/15/2017). The report of a March 2017 VA Scars Examination contains similar findings to the February 2017 report, but was apparently conducted by a different provider. No scars of the trunk or extremities were painful or unstable. There was a scar of the right lateral anterior hip, which was 10 centimeters x .3 centimeters. There was a scar of the anterior trunk which was 18 x 1 centimeters. There was no disfigurement or limitation of function (Record 03/28/2017). After a review of all of the evidence, the Board finds that the criteria for a compensable disability rating have not been met for the Veteran’s surgical scars, which are not shown to be painful or to have any characteristics of disability as contemplated under the rating schedule. In light of these findings, the Board concludes that the increased rating sought on appeal is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371. Entitlement to a rating in excess of 10 percent for right hip limitation of extension. Entitlement to a compensable disability rating for right hip limitation of flexion. Entitlement to a compensable disability rating for the service-connected right hip/thigh limitation of motion other than flexion or extension. In a November 2013 rating decision, service connection was granted for a right hip disability and initial disability ratings were assigned as follows: a rating of 10 percent was assigned under Diagnostic Code 5251; a rating of 0 percent was assigned under Diagnostic Code 5252; and, a rating of 0 percent was assigned under Diagnostic Code 5253, each effective October 29, 2009. Diagnostic Code 5250 addresses ankylosis of the hip. A rating of 90 percent is available for unfavorable ankylosis at an extremely unfavorable angle, with the foot not reaching the ground and with crutches necessitated. A 70 percent rating is available for unfavorable ankylosis at an intermediate angle. A 60 percent rating is available for favorable ankylosis, in flexion, at an angle between 20 degrees and 40 degrees, and with slight adduction or abduction. 38 C.F.R. § 4.71a, Diagnostic Code 5250. Diagnostic Code 5251 addresses limitation of extension of the thigh. A rating of 10 percent is available where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Diagnostic Code 5252 addresses limitation of flexion the thigh. A rating of 40 percent is available where flexion is limited to 10 degrees. A rating of 30 percent is available where flexion is limited to 20 degrees. A rating of 20 percent is available where flexion is limited to 30 degrees. A rating of 10 percent is available where flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Diagnostic Code 5253 addresses other impairment of thigh. A rating of 20 percent is available where abduction is limited such that motion is lost beyond 10 degrees. A rating of 10 percent is available where adduction is limited such that the individual cannot cross his/her legs; or, where rotation is limited such that the individual cannot toe-out more than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. An October 2009 X-ray of the hips shows mild degenerative changes, bilaterally (Record 05/11/2010). The report of a November 2013 VA Hip Examination reveals a diagnosis of a bilateral hip sprain. The Veteran reported pain on motion and weakness. No flares were reported. Range of motion was measured to 95 degrees of flexion and greater than 5 degrees extension. Abduction was not lost beyond 10 degrees; adduction was not limited such that the Veteran could not cross her legs; and rotation was not limited such that the Veteran could not toe out more than 15 degrees. Pain began at the extent of motion in each plane. After 3 repetitions, there was no change in range of motion. Lower extremity muscle strength was reduced (Record 11/08/2013 at 9). The report of a March 2017 VA Hip Examination reveals the Veteran’s complaint of daily radiating pain to the bilateral hips with walking. The Veteran stated that she believed the pain was actually caused by her back. On examination, range of motion of the right hip was normal in flexion, extension, abduction, adduction, internal rotation, and external rotation. There was no evidence of pain with weight bearing. There was no additional limitation of motion after repetitive use testing. The Veteran did not experience flares. Muscle strength testing was normal and there was no atrophy. There was no effect of any of the Veteran’s tested disorders on her ability to work (Record 03/28/2017). After a review of all of the evidence, the Board finds that the criteria for higher disability ratings have not been met for the service-connected right hip disability. Essentially, the Veteran’s service-connected right hip is asymptomatic in terms of range of motion, with the exception of slightly decreased flexion. While the Board acknowledges that the Veteran has painful motion of the hip, even the Veteran acknowledged that the pain she experiences in the right hip is likely associated with her back disability, and not with her right hip disability. Moreover, while pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. These normal working movements of the body are evaluated in the case of a hip disability through range of motion testing and strength testing, as has been conducted here. The Board also acknowledges that the Veteran has arthritis of the right hip. However, the provisions of Diagnostic Code 5003, applicable to arthritis, provide no more than a 10 percent rating for arthritis with painful motion of a major joint. In this case, such has already been assigned. Only when arthritic pain does not cause limitation of motion, or causes a limitation of motion that does not rise to a compensable level, will a 10 percent rating under Diagnostic Code 5003 be appropriate. The Board finds that the medical examinations provided with respect to these claims are adequate and appear to be compliant with Correia, 28 Vet. App. 158. The examination reports include all pertinent complaints, findings, and diagnosis, and they include the Veteran’s descriptions of her symptoms and functional impairment. In sum, the Board finds that the criteria for a disability rating in excess of 10 percent for the service-connected right hip disorder have not been met, and are not more nearly approximated than are the criteria for a rating of 10 percent. In light of these findings, the Board concludes that the increased rating sought on appeal is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 40 percent or one 60 percent disability, the following will be considered as one disability: (1) disabilities affecting one or both upper or lower extremities; (2) disabilities resulting from a common etiology or single accident; (3) disabilities affecting a single body system; among other exceptions. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. TDIU entitlement In this case, the Veteran has multiple service-connected disabilities, which combine to produce a 70 percent rating since October 8, 2013. While there is no single disability rated as 40 percent, the lumbar spine and radiculopathy for each lower extremity emanate from a common etiology. Accordingly, the schedular criteria for TDIU have been met since October 8, 2013, in accordance with 38 C.F.R. § 4.16(a)(2). The Veteran asserts that she last worked full time in October 2011, and that she became too disabled to work at that time. She reported a work history as a corrections officer and as a police dispatcher (Record 11/11/2016). After a review of all of the evidence, the Board finds that, in light of the Veteran’s service-connected musculoskeletal disorders (affecting the thoracolumbar spine, right shoulder, and right hip), the Veteran has significant service-connected disabilities affecting her ability to perform the type of work for which she has experience and training. Notably, the Veteran’s job history as a corrections officer would likely require significant physical activity and strength, which would certainly be impacted by the combined effects of her service-connected disabilities. Moreover, her most recent experience as a police dispatcher would likely require extended periods of sitting. A March 2017 VA medical opinion states that the Veteran experiences radicular symptoms with prolonged sitting (Record 03/28/2017) and that she must change positions as needed (Record 03/28/2017). The question of the ability to engage in a substantially gainful occupation must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Here, the Board finds that, in light of the Veteran’s specialized work experience, which appears to require either physical tasks or prolonged sitting, the combination of service-connected symptomatology present in this case raises the evidence in favor of the claim to relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the claim, the Board finds that TDIU is warranted. The effective date for this award will be determined in the first instance by the RO. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp