Citation Nr: 18155741 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-05 922 DATE: December 6, 2018 ORDER New and material evidence being submitted, the claim of entitlement to service connection for a cervical spine condition is reopened. Service connection for cervical spine degenerative disc disease (DDD) is granted. An increased rating of 30 percent, but no higher, for left shoulder arthritis prior to December 29, 2006 is granted. Entitlement to a temporary total disability rating based on convalescence following left shoulder surgery from February 1, 2008 is denied. An increased rating of 50 percent, but no higher, for left shoulder replacement of humeral head from February 1, 2008 is granted. An increased rating of 40 percent, but no higher, for L2-3 laminectomy and L2 hemilaminectomy with L5-S1 decompression and failed back syndrome prior to July 11, 2014 is granted, subject to the laws and regulations governing monetary benefits. An increased rating greater than 40 percent for L2-3 laminectomy and L2 hemilaminectomy with L5-S1 decompression and failed back syndrome from July 11, 2014 to June 18, 2017, and from October 1, 2017 is denied. An initial disability rating of 10 percent, but no higher, for the Veteran’s left shoulder scar, 19cm x 0.3cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s midline lower back scar, 23cm x 0.5cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s left lower back scar 1, 6cm x 0.5cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s left lower back scar 2, 1cm x 0.1cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s left lower back scar 3, 1cm x 0.1cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s right lower back scar 1, 4cm x 0.3cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s right lower back scar 2, 4cm x 0.3cm identified upon VA examination in April 2007, is granted. An initial disability rating of 10 percent, but no higher, for the Veteran’s right lower back scar 3, 4.5cm x 0.2cm identified upon VA examination in April 2007, is granted. An initial disability rating of 40 percent, but no higher, for right lower extremity sciatic nerve radiculopathy is granted. An initial disability rating of 40 percent, but no higher, for left lower extremity sciatic nerve radiculopathy is granted. An initial disability rating of 30 percent, but no higher, for right lower extremity femoral nerve radiculopathy is granted. An initial disability rating of 30 percent, but no higher, for left lower extremity femoral nerve radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. A June 1996 rating decision denied service connection for a cervical spine condition. Though the Veteran filed a notice of disagreement (NOD), he did not file a substantive appeal to the December 1996 statement of the case (SOC) denying his claim. As such, the June 1996 rating decision became final. 2. At the time of the December 1996 SOC, the record did not contain evidence showing a cervical spine condition. Subsequent to that decision, the Veteran submitted a medical document showing degenerative changes in the cervical spine. This diagnosis is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s cervical spine DDD is etiologically related to service. 4. Prior to December 29, 2006, the Veteran’s left shoulder arthritis was manifested by additional functional loss approximating limitation of motion to 25 degrees from side. It was not manifested by ankylosis. 5. The Veteran underwent left shoulder prosthetic surgery on December 29, 2006, and remained in post-surgical convalescence through January 31, 2008. 6. As of February 1, 2008, the Veteran’s left shoulder humeral head replacement was manifested by chronic residuals consisting of severe, painful motion or weakness. 7. The Veteran’s lower back disability manifested as forward flexion of the thoracolumbar spine to 30 degrees or less. It did not manifest as unfavorable ankylosis of the thoracolumbar spine. 8. Throughout the appeal period, the Veteran’s left shoulder scar, 19cm x 0.3cm identified upon VA examination in April 2007, was painful and not unstable. 9. Throughout the appeal period, the Veteran’s midline lower back scar, 23cm x 0.5cm identified upon VA examination in April 2007, was painful and not unstable. 10. Throughout the appeal period, the Veteran’s left lower back scar 1, 6cm x 0.5cm identified upon VA examination in April 2007, was painful and not unstable. 11. Throughout the appeal period, the Veteran’s left lower back scar 2, 1cm x 0.1cm identified upon VA examination in April 2007, was painful and not unstable. 12. Throughout the appeal period, the Veteran’s left lower back scar 3, 1cm x 0.1cm identified upon VA examination in April 2007, was painful and not unstable. 13. Throughout the appeal period, the Veteran’s right lower back scar 1, 4cm x 0.3cm identified upon VA examination in April 2007, was painful and not unstable. 14. Throughout the appeal period, the Veteran’s right lower back scar 2, 4cm x 0.3cm identified upon VA examination in April 2007, was painful and not unstable. 15. Throughout the appeal period, the Veteran’s right lower back scar 3, 4.5cm x 0.2cm identified upon VA examination in April 2007, was painful and not unstable. 16. The Veteran’s bilateral lower extremity sciatic nerve radiculopathy is manifested by moderately severe, incomplete paralysis. It is not manifested by complete paralysis or severe, incomplete paralysis with marked muscular atrophy. 17. The Veteran’s bilateral lower extremity femoral nerve radiculopathy is manifested by severe, incomplete paralysis. It is not manifested by complete paralysis. 18. The Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for cervical spine condition. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. The criteria to establish service connection for cervical spine DDD have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for a 30 percent disability rating, but no higher, for left shoulder arthritis prior to December 29, 2006 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). 4. The criteria for a temporary total disability rating based on convalescence following left shoulder replacement on December 29, 2006 is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R § 4.30 (2017). 5. The criteria for a 50 percent disability rating, but no higher, for left shoulder humeral head replacement from February 1, 2008 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5051 (2017). 6. The criteria for a 40 percent disability rating, but no higher, for lower back disability prior to July 11, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2017). 7. The criteria for an increased rating greater than 40 percent for lower back disability from July 11, 2014 to June 18, 2017, and from October 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2017). 8. The criteria for an initial disability rating of 10 percent, but no higher, for left shoulder scar, 19cm x 0.3cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 9. The criteria for an initial disability rating of 10 percent, but no higher, for midline lower back scar, 23cm x 0.5cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 10. The criteria for an initial disability rating of 10 percent, but no higher, for left lower back scar 1, 6cm x 0.5cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 11. The criteria for an initial disability rating of 10 percent, but no higher, for left lower back scar 2, 1cm x 0.1cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 12. The criteria for an initial disability rating of 10 percent, but no higher, for left lower back scar 3, 1cm x 0.1cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 13. The criteria for an initial disability rating of 10 percent, but no higher, for right lower back scar 1, 4cm x 0.3cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 14. The criteria for an initial disability rating of 10 percent, but no higher, for right lower back scar 2, 4cm x 0.3cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 15. The criteria for an initial disability rating of 10 percent, but no higher, for right lower back scar 3, 4.5cm x 0.2cm identified upon VA examination in April 2007, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2008). 16. The criteria for an initial disability rating of 40 percent, but no higher, for right lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 17. The criteria for an initial disability rating of 40 percent, but no higher, for left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 18. The criteria for an initial disability rating of 30 percent, but no higher, for right lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2017). 19. The criteria for an initial disability rating of 30 percent, but no higher, for left lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2017). 20. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to March 1995. The Veteran appeals multiple rating decisions by the Agency of Original Jurisdiction (AOJ). In a June 2007 rating decision, the AOJ granted service connection for replacement of left shoulder humeral head (left shoulder disability) with an evaluation of 0 percent effective October 3, 2006, 100 percent effective December 29, 2006, and 20 percent effective February 1, 2008. The AOJ also continued a 10 percent evaluation of L2-3 laminectomy and L2 hemilaminectomy with L5-S1 decompression (lower back disability). The Veteran submitted new and material evidence as to these issues within a year, hence, the claims remained pending. In a September 2008 rating decision, the AOJ denied the Veteran’s extension of a temporary evaluation based on surgical or other treatment necessitating convalescence for his left shoulder prosthetic surgery, continued his 10 percent evaluation for lower back disability, continued his 20 percent disability rating for left shoulder disability, and granted service connection for scars in the lumbar and left shoulder area effective July 22, 2008. In an October 2014 rating decision, the AOJ granted service connection for painful surgical scars, lefts shoulder and back with an evaluation of 10 percent effective November 6, 2009, and 30 percent effective July 11, 2014. The AOJ also granted service connection for bilateral lower extremity radiculopathy with an evaluation of 20 percent per lower extremity, effective July 11, 2014. The AOJ also increased the Veteran’s lower back disability to 20 percent effective June 10, 2009 and 40 percent effective July 11, 2014. He was also granted convalescence from June 19, 2017 to October 1, 2017 for his lower back. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in August 2013, the AOJ denied increased rating claims for the Veteran’s right knee, left wrist carpal tunnel, chronic sinusitis, hearing loss, back fracture at T7 and T9, deviated septum without trauma, right ear laceration of pinna, decompression sickness with shoulder pain, right ankle condition, special monthly compensation based on aid and attendance, and service connection for right shoulder condition. After the Veteran submitted a notice of disagreement (NOD), the AOJ issued a letter acknowledging receipt and has undertaken further development of the issues. Therefore, no action is warranted by the Board under Manlincon v. West, 12 Vet. App. 238, 240-41 (1991). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The first and second Shedden elements are met and not in dispute. The evidentiary record contains a diagnosis of cervical spine DDD. See July 2008 Dr. W.F.L. letter. In service, the Veteran was involved in three motor vehicle crashes and suffered decompression sickness. See September 2012 Dr. A.A. medical opinion. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s cervical spine DDD and his experiences in service. After reviewing pertinent records and defining residuals of decompression sickness, Dr. A.A. opined that the Veteran’s three motor vehicle crashes and decompression sickness while in service “cumulatively contributed” to his cervical spine DDD. See September 2012 Dr. A.A. medical opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s cervical spine DDD and his experiences in service. Accordingly, the Board grants service connection for cervical spine DDD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Left Shoulder The Veteran filed his left shoulder claim in October 2006. Shortly after, the AOJ granted service connection for replacement of left shoulder humeral head with a prosthetic. As a result, the Veteran has been rated under Diagnostic Code 5099-5051 since December 29, 2006, or the date of his left shoulder replacement surgery. As explained below, the Board finds that assigning Diagnostic Code 5099-5051 from December 29, 2006 is proper, and that a 30 percent disability rating prior to his surgery under Diagnostic Code 5201 is warranted. A. Change in Diagnostic Code Prior to December 29, 2006 The Board recognizes that the Veteran was assigned a non-compensable rating under Diagnostic Code 5099-5051 prior to his left shoulder replacement in December 29, 2006. However, that Diagnostic Code only becomes prevalent when the Veteran gets a left shoulder replacement. The record does not reflect that the Veteran had such a replacement before December 29, 2006. Nevertheless, the Veteran is entitled to a 30 percent disability rating for his left shoulder before this date under Diagnostic Code 5201. Shoulder disabilities are rated under Diagnostic Codes 5200 through 5203 of 38 C.F.R. § 4.71a. Diagnostic Code 5200 addresses ankylosis of the scapulohumeral articulation. Diagnostic Code 5201 addresses limitation of arm motion, while Diagnostic Code 5202 deals with other impairment of the humerus. Diagnostic Code 5203 addresses impairment of clavicle or scapula. 38 C.F.R. § 4.71a. Those criteria are used for rating disabilities due to limitation of arm motion and provide different rating schedules depending on whether the arm involved is major (dominant) or minor (non-dominant). The Veteran has reported during treatment and examinations that he is right-hand dominant. Under Diagnostic Code 5201, limitation of arm motion at shoulder level warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 20 percent disability rating is warranted for limitation of arm motion midway between side and shoulder level. A 30 percent disability rating is warranted for limitation of arm motion to 25 degrees from side (i.e., abduction). Id. Normal ranges of shoulder motion include flexion (forward elevation) from 0 degrees to 180 degrees, abduction (elevation of the arm to the side) from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71a, Plate I (2017). When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.” The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint. Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating. Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code. Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Here, the Veteran has exhibited painful motion of the left shoulder prior to December 29, 2006. See, e.g., October 2006 Veteran statement. Therefore, he is at least entitled to a minimum disability rating under 5201 prior to December 29, 2006, or 20 percent. Further, the Board finds that a higher rating is warranted based on additional functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Upon examination three months before surgery, the Veteran had flexion to 150 degrees in both active and passive motion, while his opposite joint had normal range of motion. See September 2006 Dr. K.S. treatment record. Further, strength was 4 out of 5 and there was deep crepitus. Here, the Veteran’s surgeon found the Veteran’s chronic glenohumeral osteoarthritis so severe that it warranted a prosthetic. Importantly, under anesthesia at his left shoulder replacement surgery, examination revealed he “lacked about 30 [percent] of his end range of motion in all directions.” See December 2006 Dr. K.S. treatment record. Hence, at a minimum, the Veteran lost 30 percent of his end range motion before factors such as pain, weakness, and incoordination were considered. Thus, taking Dr. K.S.’s characterization of the Veteran’s left shoulder condition, along with decreased strength and significant differences between the Veteran’s left and right shoulders, the Board finds the Veteran’s limitation of motion approximates to 25 degrees from side before surgery. Before the surgery, the Veteran does not have and has not described ankylosis of the left shoulder. Further, his surgeon did not mention humerus, clavicle, or scapula impairment other than severe osteoarthritis. See September 2009 Dr. K.S. treatment record. Hence, ratings under 5200, 5202, or 5203 are not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 30 percent rating under Diagnostic Code 5201 prior to December 29, 2006. See 38 U.S.C. §\ 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Convalescence The Veteran contends that his 100 percent rating from December 29, 2006 should extend beyond February 1, 2008. The Veteran was granted a 100 percent disability rating under Diagnostic Code 5099-5051 from December 29, 2006, or the date of his left shoulder replacement, to January 31, 2008, or a year after surgery as contemplated under Diagnostic Code 5051. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted based on specific criteria set forth under 38 C.F.R. § 4.30(a). Such rating will be effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30(a), temporary total disability ratings will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity of house confinement, or the necessity for continued use of a wheelchair or crutches; or, (3) immobilization by cast, without surgery, or one major joint or more. 38 C.F.R. § 4.30(a). Extensions of 1, 2, or 3 months beyond the initial 3 months may be made under paragraph (a)(1), (2), or (3) of that section. Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30. Here, an extension under § 4.30 for the Veteran’s left shoulder surgery on December 29, 2006 is unwarranted because it is moot. Specifically, the Veteran already has a 100 percent disability rating for his left shoulder for a year after December 29, 2006. Even if a rating under § 4.30 was granted from that date, it would not extend beyond February 1, 2008. Nevertheless, as explained below, the Veteran is entitled to TDIU throughout the appellate period. As a result, an extension under 38 C.F.R. § 4.30 is not warranted. C. From February 1, 2008 The Veteran’s left shoulder disability is rated under Diagnostic Code 5099-5051 by analogy, and has retained that disability rating throughout the appellate period. Hence, the holding of Hudgens v. McDonald and subsequent regulatory change to Diagnostic Code 5051 do not apply. Cf. 823 F.3d 630, 639 (Fed. Cir. 2016). Diagnostic Code 5051 entails shoulder replacement with a prosthesis. The Veteran is entitled to a 50 percent disability rating with chronic residuals of minor shoulder consisting of severe, painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion, VA is to rate the shoulder by analogy to diagnostic codes 5200 and 5203. 38 C.F.R. § 4.71a, Diagnostic Code 5051. On at least two occasions, VA clinicians have opined that the Veteran suffers from chronic left shoulder replacement residuals consisting of severe painful motion and or weakness. See November 2015 VA examination report; see also January 2018 VA examination report. Similarly, the Veteran’s left shoulder surgeon said the Veteran’s left shoulder pain condition left him “very dysfunctional and likely he has no vocational options.” See January 2008 Dr. K.S. medical statement. As a result, the Board finds he is entitled to a 50 percent disability rating under Diagnostic Code 5099-5051 from February 1, 2008. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 50 percent rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board finds that the criteria for a disability rating of 50 percent, but no higher, for left shoulder humeral head replacement are met. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. 2. Lower Back Here, the Veteran claims that his lower back disability is more severe than his current disability rating would indicate. He filed his claim in September 2006. Importantly, the AOJ granted a temporary 100 percent disability rating for his lower back disability from June 19, 2017 to September 30, 2017. Hence, as the Veteran has the highest schedular rating available for his lower back disability between those dates, the Board will consider whether the Veteran is entitled to a higher disability rating prior to July 11, 2014, from July 11, 2014 to June 18, 2017, and from October 1, 2017. Under 38 C.F.R. § 4.71a, all spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has intervertebral disc syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). An incapacitating episode is defined as 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. Id. at Note (1) (2017). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 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 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, Diagnostic Codes 5235 to 5242, Note (2). Upon multiple examinations, the Veteran was found to have IVDS. See, e.g., January 2018 and July 2014 VA examination reports. However, on each occasion, the VA clinician did not find that the Veteran experienced incapacitating episodes. Id.; see also June 2008 VA examination report. Hence, a higher rating is not warranted under Diagnostic Code 5243 prior to July 11, 2014, from July 11, 2014 to June 18, 2017, or from October 1, 2017. Nevertheless, the Veteran had his spine fused in 2004; further, the Veteran submitted an article explaining that such a fusion equates to ankylosis. However, VA clinicians did not find that the Veteran’s lower back was fixed in a particular condition, and have repeatedly stated he does not have ankylosis. See, e.g., January 2018 and July 2014 VA examination reports. Importantly, upon range of motion testing throughout the appeal period, the Veteran’s forward flexion was to 30 degrees or less. See July 2014 VA examination report. Further, in June 2009, while the Veteran’s lumbar spine exhibited flexion to 40 degrees, he was unable to complete repetitive testing due to pain. See June 2009 VA examination report. Thus, the Board finds that the Veteran’s disability rating more closely approximates 40 percent prior to July 11, 2014, from July 11, 2014 to June 18, 2017, and from October 1, 2017. However, the record does not show that the Veteran has unfavorable ankylosis prior to July 11, 2014, from July 11, 2014 to June 18, 2017, or from October 1, 2017. VA defines unfavorable ankylosis as a condition in which the entire thoracolumbar 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 coastal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Diagnostic Code 5241, Note (5). Here, as a predicate matter, the Veteran can move his lower back, and it is not fixed in a position. Thus, he does not have or approximate unfavorable ankylosis. Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 40 percent levels for his lower back disability, staged ratings are not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 40 percent rating, but no higher, prior to July 11, 2014, and throughout the appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board finds that the criteria for a disability rating of 40 percent, but no higher, for lower back disability are met prior to July 11, 2014. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. Similarly, the Board finds that the criteria for a disability rating greater than 40 percent for lower back disability are not met from July 11, 2014 to June 18, 2017, and from October 1, 2017. 3. Scars In a September 2008 rating decision, the AOJ granted entitlement to service connection for scar, lumbar area and scar, left shoulder area, and assigned non-compensable disability ratings for each area from July 22, 2008. Six years later, the AOJ granted service connection for painful scars, left shoulder and back, with an evaluation of 10 percent effective November 6, 2009, and 30 percent evaluation from July 11, 2014. See October 2014 rating decision. On September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008. Here, the September 2008 rating decision was issued as part and parcel of the Veteran’s appeal for increased disability ratings for his back and left shoulder condition. As the claim was received prior to October 23, 2008, the Board finds the AOJ erroneously assigned scar disability ratings under the new, less favorable rating criteria. This is because the old rating criteria assigned a 10 percent rating per painful scar, whereas the new rating criteria caps five or more painful scars that are not unstable at 30 percent. Under the rating criteria effective prior to October 23, 2008, in pertinent part, scars that are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). In pertinent part, under the revised regulations effective October 23, 2008, Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. For a 20 percent rating, there must be three or four scars that are unstable or painful. For a 30 percent rating, there must be five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Upon back and left shoulder examination in April 2007, VA found eight scars. The Veteran got these scars because of surgeries to his service-connected back and left shoulder. On the left shoulder, the Veteran had a 19cm x 0.3cm scar. See April 2007 VA examination report. Further, he had a 23cm x 0.5cm midline lower back scar. The Veteran also had three smaller scars to the right and left of the midline lower back scar. The left lower back scars measured 4cm x 0.3cm, 4cm x 0.3cm, and 4.5cm x 0.2cm. The right lower back scars measured 6cm x 0.1cm, 1cm x 0.1cm, and 1cm x 0.1cm. While clinicians interpreted the same scars as ranging from three to twelve overall over the next several years, the Board finds these scars as best represented in the April 2007 VA examination. Upon VA examination in November 2009, the Veteran’s scars were painful. See November 2009 VA examination report. The scars were not found to be unstable in subsequent VA examinations. See, e.g., November 2015 VA examination report. As the old criteria allows for a separate rating for each painful scar, the Board assigns a 10 percent rating for each scar identified in the April 2007 VA examination report. 4. Radiculopathy Lower extremity radiculopathy is rated under Diagnostic Codes 8520 to 8530; the assigned Diagnostic Code depends on the corresponding peripheral nerve. The sciatic nerve is rated under Diagnostic Code 8520, while the anterior crural nerve (femoral) is rated under Diagnostic Code 8526. Under Diagnostic Code 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis warrants an 80 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8526, moderate incomplete paralysis of the femoral nerve warrants a 20 percent disability rating, severe incomplete paralysis warrants a 30 percent disability rating, and complete paralysis warrants a 40 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8526. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Here, the Veteran has complained of lower extremity radiculopathy throughout the appellate period. See, e.g., June 2009 VA examination report. Specifically, the Veteran suffers from constant pain, intermittent dull pain, paresthesias and/or dysesthesias, and numbness of the lower extremities. See January 2018 VA examination report. These involve the femoral and sciatic nerves. Id. Upon examination, a VA clinician determined that “[w]eightbearing employment tasks would be difficult and he is a fall risk.” See January 2018 VA examination report. As a result, the Board finds that the Veteran suffers from moderately severe incomplete paralysis of the sciatic nerve and severe incomplete paralysis of the femoral nerve in both legs. However, the Veteran can still feel his legs, and does not have marked muscle atrophy. See January 2018 VA examination report. Similarly, the record does not show, and the Veteran does not argue, that he has complete paralysis of the sciatic or femoral nerves. Thus, the Board finds that the criteria for an initial disability rating of 40 percent, but no higher, throughout the appellate period for bilateral lower extremity sciatic nerve radiculopathy are met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. The Board also finds that the criteria for an initial disability rating of 30 percent, but no higher, throughout the appellate period for bilateral lower extremity femoral nerve radiculopathy are met. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has alleged that he cannot work because of his service-connected lower back and left shoulder disabilities. See March 2009 VA Form 21-8940. The Veteran has not worked since September 2006. See November 2009 SSA decision. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. In terms of his individual employability, at least three VA clinicians have deemed him unable to work because of his service-connected disabilities. In November 2010, a VA clinician opined that “it is at least as likely as not that the Veteran’s service-connected disabilities, either alone or together, renders him unable to service or follow a substantially gainful employment.” See November 2010 VA examination report. The clinician also states that the “overall severity of his service connected conditions, especially orthopedic conditions, prevent him from continuing in his present career path as a mechanic due to the physical nature of this type of work, and [thinks] the sum total of his service connected conditions would also prevent his from being able to effectively retrain in a new field for substantially gainful employment.” See November 2010 VA examination report. Five year later, another VA clinician opined that the Veteran’s “severe chronic back pain, limited mobility, and [use of] high dose opiates” prevent him from seeking employment. See November 2015 VA examination report. In addition, though not binding, an SSA adjudicator found that the Veteran has not engaged in substantially gainful activity since September 6, 2006 because of the following disabilities: scapulohumeral disorder, degenerative disc disease of the lumbar and cervical spine, degenerative changes of the right glenohumeral joint. See November 2009 SSA decision. Recently, a VA clinician opined that the Veteran “would not be able to function in a gainful employment setting either actively or in a sedentary manner due to severe functional back limitations and chronic pain at rest, and with sitting, and standing.” See January 2018 VA examination report. Similarly, the Veteran has “minimal ROM of the left shoulder and would be unable to perform employment tasks requiring any left shoulder tasks due to pain and limited motion.” See January 2018 VA examination report. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the orthopedic symptoms make it difficult to stand, walk, or use his left shoulder for prolonged periods during the workday. This, along with high dose opiate use, would also cause concentration lapses, hinder his ability to effectively complete tasks, and frequent absences. As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment throughout the appellate period. Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel