Citation Nr: 18154702 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-32 784 DATE: November 30, 2018 ORDER A compensable rating for hypertension is denied. A compensable rating for erectile dysfunction is denied. A compensable rating for herpes simplex is denied. A compensable rating for sinusitis is denied. A rating in excess of 10 percent for a right foot hallux valgus, status-post bunion surgery, is denied. A rating in excess of 10 percent for a left foot hallux valgus, status-post bunion surgery, is denied. The reduction of the Veteran’s rating for left lower extremity radiculopathy from 20 percent to 10 percent, effective July 1, 2015, was improper; the 20 percent rating is restored. The issue of whether the reduction of the Veteran’s rating for degenerative changes of the lumbar spine, status post partial laminectomy, from 20 percent to 10 percent, effective from July 1, 2015 to March 13, 2016, is dismissed as moot. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy, prior to March 14, 2016, and in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected hypertension requires constant medication but is not manifested by diastolic pressure of predominantly 100; systolic pressure of predominantly 160 or more; or a medical history of diastolic blood pressure of predominantly 100 or more. 2. The Veteran’s erectile dysfunction is not manifested by a penis deformity. 3. The Veteran’s herpes simplex has not been manifested by at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; any intermittent systemic therapy. 4. The Veteran’s sinusitis is not productive of one or two incapacitating episodes per year requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes per year. 5. The Veteran is in receipt of the maximum schedular rating available for right and left hallux valgus, status post bunionectomies. 6. The reduction in the rating for the left lower extremity radiculopathy was not based on evidence that showed actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 7. The RO already restored the Veteran’s 20 percent rating for degenerative changes of the lumbar spine, status post partial laminectomy, effective from July 1, 2015, to March 13, 2016; as such, the issue as to whether the reduction was proper is moot. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hypertension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.7, 4.104, Diagnostic Code 7101 (2017). 2. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.115b, Diagnostic Code 7522 (2017). 3. The criteria for a compensable rating for herpes simplex are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.27, 4.118, Diagnostic Code 7806 (2017). 4. The criteria for a compensable rating for sinusitis are not met. 38 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R.§§ 3.102, 4.97, Diagnostic Code 6513 (2017). 5. The criteria for a rating in excess of 10 percent for right foot hallux valgus, status-post surgery, is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5280 (2017). 6. The criteria for a rating in excess of 10 percent for left foot hallux valgus, status-post surgery, is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5280 (2017). 7. The reduction of the Veteran’s rating for left lower extremity radiculopathy from 20 percent to 10 percent, effective July 1, 2015, was improper; the 20 percent evaluation is restored. 38 U.S.C. §§ 5112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.343, 3.344(c), Diagnostic Code 8520 (2017). 8. The issue of whether the rating reduction from 20 percent to 10 percent for service-connected lumbar spine disability was proper is dismissed as moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. §§ 3.105 (e), 3.344 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to December 1999. This matter comes before the Board of Veterans’ Appeals (Board) from January 2015, March 2015, April 2015, and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before a Decision Review Officer at the RO regarding the lumbar spine disability and associated radiculopathy. General Disability Rating Criteria-Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a disorder with the requirements contained in VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2017). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Hypertension The Veteran essentially contends that his hypertension is manifested by symptomatology more nearly approximating a rating in excess of the current noncompensable (zero percent) rating assigned under 38 C.F.R. § 4.104, Diagnostic Code 7101. For hypertensive vascular disease, with diastolic pressure of predominantly 100 or more, or with systolic pressure predominantly 160 or more, or where continuous medication is shown necessary for the control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a 10 percent rating is assigned. With diastolic pressure predominantly 110 or more, or with systolic pressure predominantly 200 or more, a 20 percent rating is warranted. With diastolic pressure predominantly 120 or more, a 40 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board has reviewed all of the evidence of record, both lay and medical, and finds that the Veteran’s hypertension symptomatology does not more nearly approximate that required for a 10 percent rating under Diagnostic Code 7101 for the entire initial rating period under appeal. The Veteran underwent a VA hypertension examination in May 2012. At that time, the Veteran stated that he was on medication for his hypertension. The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. There were no blood pressure readings taken during the examination. During an October 2013 VA hypertension examination report, the Veteran’s blood pressure was noted as 141/86, 137/95, and 139/94. The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. In a January 2015 VA examination report, the Veteran’s blood pressure was recorded as 112/70, 113/68, and 115/70. The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. VA treatment records show various blood pressure readings throughout the rating period on appeal; however, there is no indication that the Veteran’s hypertension was manifested by diastolic pressure of 100 or more, or systolic pressure of 160 or more. See e. g., (March 2016, BP 118/61), (May 2017, BP 119/79), (January 2017, BP 122/67), (April 2017, BP 140/76). The Board finds that the Veteran’s hypertension symptomology does not more nearly approximate diastolic pressure of 100 or more, or systolic pressure of 160 or more. Moreover, although the Veteran takes continuous medication for the control of hypertension, the evidence does not demonstrate a history of diastolic blood pressure predominantly 100 or more. Therefore, a compensable rating is not warranted. Because the preponderance of the evidence is against a compensable rating for the service-connected hypertension for the entire rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Erectile Dysfunction The Veteran’s erectile dysfunction is properly evaluated under Diagnostic Code 7522. Diagnostic Code 7522 provides a 20 percent rating for a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A footnote to this diagnostic code indicates that claims for penis deformities should be reviewed for entitlement to special monthly compensation (SMC). See 38 U.S.C. §§ 1114 (k) (2012); 38 C.F.R. § 3.350 (k) (2017). SMC is payable for anatomical loss or loss of use of a creative organ. Id. Here, a compensable rating for erectile dysfunction is not warranted. Although the Veteran has loss of erectile power, the medical evidence does not reflect a penile deformity, which is necessary for a compensable rating. During the May 2012 and January 2015 VA examinations, a physical examination of the Veteran’s penis was normal. The remaining evidence of record indicates that the Veteran is unable to achieve a full erection. However, the Board notes that loss of erectile power is not the same as a penile deformity as contemplated under Diagnostic Code 7522. The Board finds that there is no other provision of the code that would afford the Veteran a compensable evaluation for his erectile dysfunction. It is noted that the October 2013 VA examiner indicated that the Veteran did not have voiding dysfunction or any other symptoms potentially ratable. See generally 38 C.F.R. § 4.115a (2017). Further, the Veteran has already been granted SMC for loss of use of a creative organ. Because the preponderance of the evidence is against a compensable rating for the service-connected erectile dysfunction for the entire rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, supra. Herpes Simplex The Veteran’s herpes simplex is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and “99.” 38 C.F.R. § 4.27. Hence, the Veteran’s herpes simplex is rated by analogy using the criteria for dermatitis or eczema under Diagnostic Code 7806. Under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating contemplates at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating contemplates more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Turning to the evidence, during a May 2012 VA skin examination, the Veteran reported that his herpes reoccurred periodically, but that flare-ups usually resolved without medical attention or medication. A January 2015 VA skin examination report indicated that the Veteran’s herpes simplex virus was “asymptomatic.” The Veteran stated that he had experienced recurrent episodes of herpes simplex inside his mouth, but none on his genitalia since 1988. The Veteran denied any lesions on the inside of his mouth and indicated that his condition resolved with over-the-counter medication. These manifestations of the Veteran’s herpes simplex, (i.e., outbreaks treated with over-the counter medication) are most consistent with the noncompensable rating assigned. Without demonstration that the Veteran’s herpes simplex involved 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected or required use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for treatment, the service-connected herpes simplex does not meet the criteria for assignment of a compensable rating. Moreover, as the Veteran’s herpes simplex has not caused scarring or disfigurement of the head, face, or neck, a compensable rating is not warranted under other diagnostic criteria. For these reasons, a compensable rating for the service-connected herpes simplex must be denied. Because the preponderance of the evidence is against a compensable rating for the service-connected herpes simplex for the entire rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, supra. Sinusitis The Veteran essentially maintains that his sinusitis disability warrants a compensable rating under Diagnostic Code 6513. Under Diagnostic Code 6513, a 10 percent rating is warranted for one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513. Note 1 associated with Diagnostic Code 6513 indicates that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id. During a May 2012 VA examination, the Veteran denied being treated with antibiotics for his sinus condition and stated that he was not currently on any sinus medication. The examiner indicated that the ENT examination was normal and there was no evidence of a current chronic sinus disease. The evidence also includes a January 2015 VA sinus examination report. During the evaluation, the Veteran stated that he had recurrent problems once a year manifested by congestion, sinus headaches, and runny nose. The examiner indicated that medication was not required for the condition. There were no non-incapacitating episodes or incapacitating episodes reported in the last 12 months. During the period on appeal, the Veteran’s chronic sinusitis has not been characterized by either incapacitating episodes or three to six non-incapacitating episodes per year of sinusitis. Given the Veteran’s sinusitis symptoms described above, the Board finds that the criteria for a compensable rating under Diagnostic Code 6513 are not met. Because the preponderance of the evidence is against a compensable rating for the service-connected sinusitis for the entire rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, supra. Right and Left Hallux Valgus The Veteran essentially maintains that his hallux valgus is worse than contemplated by the currently assigned 10 percent ratings. Diagnostic Code 5280 provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of the great toe is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is also rated as 10 percent disabling. 38 C.F.R. § 4.71a. The words “mild,” “moderate,” “marked,” “severe,” and “pronounced” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran is in receipt of separate 10 percent ratings for right and left hallux valgus for the entire appeal period and a 10 percent rating is the maximum available under Diagnostic Code 5280. Because hallux valgus is specifically listed in VA's Rating Schedule under Diagnostic Code 5280, the Veteran’s hallux valgus may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[t]he Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy.); see also Yancy v. McDonald, 27 Vet. App. 484, 492-93 (2016) (holding that application of Diagnostic Code 5284 is limited to disabilities resulting from actual injuries to the foot). Because the preponderance of the evidence is against separate ratings higher than 10 percent for the service-connected hallux valgus of the right and left feet for the entire rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, supra. Propriety of Reduction for Left Radiculopathy Disability The RO assigned a 10 percent rating for radiculopathy of the left lower extremity from January 1, 2000, to February 22, 2011. Beginning February 23, 2011, the RO assigned a 20 percent rating. As of July 1, 2015, the RO reduced his rating from 20 percent to 10 percent. The issue before the Board is whether the reduction beginning July 1, 2015, was proper. The claim as to whether a higher rating is warranted is being remanded in the section below. The Veteran’s radiculopathy is rated under Diagnostic Code 8520 (for incomplete paralysis of the sciatic nerve) and Diagnostic Code 8526 for incomplete paralysis of the femoral nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis with marked muscular atrophy, and 80 percent for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2017). Regarding the rating period beginning July 1, 2015, the Board finds that actual improvement in his ability to function under the ordinary conditions of life and work is not demonstrated. Notably, the March 2016 VA spine examination report indicated that the Veteran “continues to have pain the bilateral lower extremities with paresthesias.” The examiner did not indicate the severity of the Veteran’s radiculopathy in section 8(d) of the examination report. Although the reduction by the RO was based on January 2015 VA examination findings, which purportedly showed improvement in the Veteran’s condition, a review of the January 2015 VA spine examination report does not show actual improvement in the Veteran’s left lower extremity radiculopathy. For example, the examiner specifically indicated that the Veteran had “severe” pain, and “moderate” paresthesias and numbness in the left lower extremity. The Veteran was also noted to be limited in his ability to lift, walk, sit, and stand. In sum, the Board concludes that the Veteran’s functional impairment of the Veteran’s neurological disabilities, to include during flare-ups, does not show actual improvement in his ability to function under the ordinary conditions of life and work. Accordingly, and resolving all doubt in favor of the Veteran, the reduction was improper and the 20 percent rating for radiculopathy of the left lower extremity is restored, effective July 1, 2015. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. Propriety of the Reduction of Lumbar Spine Disability Rating The RO assigned a 20 percent rating for the Veteran’s lumbar spine disability for the period from May 15, 2013, through February 25, 2015. Beginning February 26, 2015, the RO awarded a temporary total rating for treatment necessitating convalescence for his partial lumbar laminectomy procedure. In a June 2015 rating decision, the RO awarded a 100 percent temporary total rating from February 26, 2015, to June 30, 2015. Beginning July 1, 2015, the RO assigned a 10 percent rating for the lumbar spine disability, status-post laminectomy. In a subsequent April 2018 rating decision, the RO restored the 20 percent rating (which had been in effect prior to the partial laminectomy procedure). A 40 percent rating was also assigned, effective March 14, 2016. See June 2016 rating decision. Thus, because the April 2018 rating decision restored the 20 percent rating, the propriety of the rating reduction for the service-connected lumbar spine disability is moot. Dismissal of this moot issue is therefore warranted. The issue of whether a rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine, status-post partial laminectomy, prior to March 14, 2016, and in excess of 40 percent thereafter, is warranted is addressed in the remand section below. REASONS FOR REMAND Lumbar Spine Disability and Associated Radiculopathy The Veteran is in receipt of a 100 percent temporary total rating for his partial laminectomy from February 26, 2015 to June 30, 2015. He contends that higher ratings in excess of 20 percent and 40 percent are warranted following the temporary total rating. In a September 2018 statement, the Veteran’s representative noted that the Veteran’s lumbar spine disability, following his partial spinal fusion, resulted in his inability to bend over. It was noted that neither the 2015 or 2016 VA examiners discussed the Veteran’s inability to bend and whether this constituted unfavorable ankylosis. Indeed, the Board’s review of the 2015 and 2016 VA examination reports reveal that the Veteran did not experience flare-ups of the spine, although the 2016 examiner noted that the Veteran had increased pain with bending, lifting, standing, and walking. For these reasons, a new VA spine examination is required to assist in determining the Veteran’s lumbar spine limitations, to include during flare-ups, and to opine as to whether the restricted movements are the functional equivalent of ankylosis. As the spine examination will likely contain information pertinent to the Veteran’s associated radiculopathy in the lower extremities, the radiculopathy claims are intertwined with the lumbar spine claim and therefore, must also be remanded. Moreover, the most recent March 2016 VA spine examination did not indicate the severity of the Veteran’s radiculopathy. TDIU The issue of entitlement to a TDIU is intertwined with the claims being remanded and referred. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA examination to determine the level of impairment due to his service-connected lumbar spine disability and bilateral lower extremity radiculopathy. (a.) Indicate all signs and symptoms of the lumbar spine disability and associated radiculopathy. (b.) Identify the presence, or absence of ankylosis (favorable or unfavorable) of the thoracolumbar or entire spine. (c.) If ankylosis is not found, opine as to whether the Veteran’s range of motion is so diminished as a result of pain that it is the functional equivalent of ankylosis, to include during flare-ups. (d.) Indicate the severity of the Veteran’s bilateral lower extremity radiculopathy. (e.) Indicate any functional impairment that may affect his ability to function and perform tasks in a work or work like setting. (Continued on the next page)   2. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel