Citation Nr: 18161196
Decision Date: 12/28/18	Archive Date: 12/28/18

DOCKET NO. 16-28 308
DATE:	December 28, 2018

ORDER

1. Entitlement to service connection for right ear hearing loss disability is denied. 

2. Entitlement to an initial compensable disability rating for left ear hearing loss is denied.

3. Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis is denied.

4. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied.

5. Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor is denied.

6. Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood is denied.

7. Entitlement to an initial disability rating in excess of 10 percent for right hip iliotibial band syndrome with limited flexion is denied.

8. Entitlement to an initial compensable disability rating for right hip iliotibial band syndrome with limited extension is denied.

9. Entitlement to an initial compensable disability rating for right hip iliotibial band syndrome with impairment of the thigh is denied.

10. Entitlement to an initial compensable disability rating for right knee strain is denied.

11. Entitlement to an initial compensable disability rating for left knee strain is denied.

12. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar strain is denied.

13. Entitlement to an initial compensable disability rating for right shoulder scars, status-post surgery, is denied.

14. Entitlement to an initial compensable disability rating prior to February 15, 2015 and in excess of 10 percent thereafter for right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention, is denied.

15. Entitlement to an initial compensable disability rating prior to February 15, 2015; a disability rating in excess of 10 percent from February 15, 2015 through March 15, 2016; and an initial compensable disability rating from March 16, 2016 and thereafter, for left shoulder trapezius strain is denied.

16. Entitlement to an initial compensable disability rating for left ingrown toenails is denied.

17. Entitlement to an initial compensable disability rating for migraine headaches is denied.

18. Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus with over-pronation, excluding the periods for which a temporary total rating has been assigned due to surgical convalescence, is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against a finding of right ear hearing loss disability.

2. The evidence of record does not show that left ear hearing loss has manifested to a compensable degree.

3. The evidence of record does not show forward flexion of the cervical spine limited to 30 degrees or less, a combined range of motion limited to 170 degrees or less, 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. 

4. Tinnitus is evaluated at the maximum schedular rating available for that disorder and the symptoms are contemplated by the rating criteria. 

5. The evidence of record does not show tinea versicolor affecting at least 20 percent or more of the entire body or use of systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period.

6. The evidence of record does not show that adjustment disorder with mixed anxiety and depressed mood has been manifested by occupational or social impairment with occasional decrease in work efficiency, and intermittent periods of in ability to perform occupational tasks due to symptoms. 

7. The evidence of record does not show that a right hip iliotibial band syndrome with limited flexion manifested with flexion limited to 45 degrees or less.

8. The evidence of record does not show that a right hip iliotibial band syndrome with limited extension has manifested with extension limited to 5 degrees or less.

9. The evidence of record does not show that a right hip iliotibial band syndrome with impairment of the thigh has manifested with limitation of rotation to 15 degrees or less or limitation of adduction of the right thigh. 

10. The evidence of record does not show slight recurrent subluxation or lateral instability for the right knee or other functional impairment.

11. The evidence of record does not show slight recurrent subluxation or lateral instability for the left knee or other functional impairment.

12. The evidence of record does not show forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of 120 degrees or less, 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.

13. The evidence of record does not show right shoulder surgery scars that are painful or unstable. 

14. The evidence of record does not show right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention, has manifested with limitation of motion of the arm at the shoulder level.

15. The evidence of record does not show a left shoulder trapezius strain has manifested with limitation of motion of the arm at the shoulder level.

16. The evidence of record does not show left ingrown toenails resulting in dysfunction or disability. 

17. The evidence of record does not show prostrating migraine headaches.

18. The evidence of record does not show bilateral pes planus with over-pronation with severe unilateral objective evidence of marked deformity, pain on manipulation and use of accentuated, indication of swelling on use, characteristic of callosities, excluding the periods for which a temporary total rating has been assigned due to surgical convalescence.

CONCLUSIONS OF LAW

1. The criteria for service connection for right ear hearing loss disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

2.  The criteria for an initial compensable disability rating for left ear hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2. 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100. 

3. The criteria for an initial disability rating in excess of 10 percent for cervical spondylosis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 

4. The criteria for an initial disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.87, Diagnostic Code 6260.

5. The criteria for an initial disability rating in excess of 10 percent for tinea versicolor have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.118, Diagnostic Code 7806.

6. The criteria for an initial disability rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9400. 

7. The criteria for an initial disability rating in excess of 10 percent for right hip iliotibial band syndrome with limited flexion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 

8. The criteria for an initial compensable disability rating for right hip iliotibial band syndrome with limited extension have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 

9. The criteria for an initial compensable disability rating for right hip iliotibial band syndrome with impairment of the thigh have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 

10. The criteria for an initial compensable disability rating for right knee strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260. 

11. The criteria for an initial compensable disability rating for left knee strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260. 

12. The criteria for an initial disability rating in excess of 10 percent for thoracolumbar strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 

13. The criteria for an initial compensable disability rating for right shoulder scars, status-post surgery, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118 Diagnostic Codes 7804, 7805. 

14. The criteria for an initial compensable disability rating prior to February 15, 2015 and in excess of 10 percent thereafter for right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 

15. The criteria for an initial compensable disability rating prior to February 15, 2015; a disability rating in excess of 10 percent from February 15, 2015 through March 15, 2016; and an initial compensable disability rating from March 16, 2016 and thereafter, for left shoulder trapezius strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 

16. The criteria for an initial compensable disability rating for left ingrown toenails, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7806. 

17. The criteria for an initial compensable disability rating for migraine headaches, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 

18. The criteria for an initial disability rating in excess of 10 percent for bilateral pes planus with over-pronation, excluding the periods for which a temporary total rating has been assigned due to surgical convalescence, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.30, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from March 2010 to May 2014.

In a May 29, 2015 rating decision, the VA regional office (RO) closed the Veteran’s claim for bilateral service connection for pes planus and granted a temporary total rating (100 percent) based on the need for convalescence following a surgical procedure for the Veteran’s right foot, effective March 18, 2015 through May 31, 2015.  

In a January 12, 2016 rating decision, the RO granted another temporary total rating (100 percent) based on the need for convalescence following a surgical procedure for the Veteran’s right foot, effective August 19, 2015 through October 31, 2015. In an April 2016 rating decision, the RO evaluated the Veteran’s service connection claim for bilateral pes planus as 10 percent disabling.

As such, the appeal for an initial increased disability rating for bilateral pes planus will not include the periods from March 18, 2015 through May 31, 2015 and August 19, 2015 through October 31, 2015 because the Veteran is already in receipt of a 100 percent rating for that period.  See AB v. Brown, 6 Vet. App. 35 (1993). 

Service Connection

Generally, to establish service connection, a claimant 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.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

1. Entitlement to service connection for right ear hearing loss disability.

The Veteran asserts that she is entitled to service connection for right ear hearing loss disability.

A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id.  

After careful review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against a finding for service connection for right ear hearing loss disability because the Veteran does not have a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385. Without meeting the first required element for a direct service connection claim, the claim must be denied.

In July 2013, a VA examiner evaluated the Veteran and determined that she does not have a diagnosis for right ear hearing loss disability.  The July 2013 VA examiner found that the Veteran’s right ear auditory thresholds were below 26 decibels for frequencies 500, 1000, 2000, 3000, and 4000 Hz and that her Maryland CNC Test speech recognition score was 100 percent.  The RO denied the Veteran’s claim in May 2014 and the Veteran filed a timely appeal.

In March 2016, another VA examiner found that the Veteran’s right ear auditory thresholds were below 26 decibels for frequencies 500, 1000, 2000, 3000, and 4000 Hz and that her Maryland CNC Test speech recognition score was 100 percent.

While the Veteran believes that she is entitled to right ear hearing loss disability, the preponderance of the evidence is against a current disability regarding the Veteran’s right ear hearing.  Specifically, two auditory VA examinations, one at separation from service in July 2013 and one two years after separation from service in March 2016 show that the Veteran’s right ear hearing does not meet the requirements of a hearing loss disability as defined by regulation.  

For these reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for right ear hearing loss disability.  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. 

Increased Rating

Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

A disability rating may require re-evaluation in accordance with changes in condition.  When an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  

Whether an issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. See 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011).

2. Entitlement to an initial compensable disability rating for left ear hearing loss disability.

The Veteran asserts that she warrants a 100 percent disability rating for her left ear hearing loss disability.

After a careful review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against a compensable disability rating for the Veteran’s left ear hearing loss disability. 

The Veteran’s left ear hearing loss disability is currently rated as noncompensable, or 0 percent disabling under 38 C.F.R. § 4.85, Diagnostic Code 6100.  

Under Diagnostic Code 6100, a disability rating for hearing loss is determined by a mechanical application of the Rating Schedule to the numeric designations assigned based upon audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85.  The Rating Schedule also recognizes exceptional patterns of hearing impairment; however, the evidence of record fails to document such hearing loss severity in this instance.  See 38 C.F.R. § 4.86.  

In this case, the Veteran was afforded a VA examination in July 2013.  The Veteran’s puretone threshold levels, in decibels, were recorded as follows: 



  	 	 	HERTZ	 	 

 	1000	2000	3000	4000	Average

LEFT	30 	 30	 20	35 	28.75 



The Veteran’s speech recognition score based on the Maryland CNC Test was 100 percent in the left ear.  The examiner diagnosed the Veteran with mild left ear sensorineural hearing loss.



In order to determine the appropriate disability rating for the Veteran’s left ear hearing loss based upon the audiologic results discussed above, the Board first looks to Table VI of Diagnostic Code 6100 as directed by 38 C.F.R. § 4.85(b).  Based upon the July 2013 VA examination results, Table VI assigns Roman numeral I to the left ear.  In cases, such as this one, where only one ear is service-connected for hearing loss, the nonservice-connected ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII.  See 38 C.F.R. § 4.85(f).  As such, Table VII indicates that a noncompensable, or 0 percent, disability rating is warranted.  38 C.F.R. § 4.85(e).  The audiometric findings combine for a Roman numeral I for the left ear, per Table VI.  See 38 C.F.R. § 4.85.  

The Veteran was afforded another VA examination in March 2016.  The Veteran’s puretone threshold levels, in decibels, were recorded as follows: 

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	Average

LEFT	25 	 30	10 	20 	21 



The Maryland CNC Test score was 94 percent in the left ear.  The audiometric findings combine for a Roman numeral I for the left, per Table VI.  See 38 C.F.R. § 4.85.  Again, where only one ear is service-connected for hearing loss, the nonservice-connected ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII.  See 38 C.F.R. § 4.85(f).  As such, Table VII indicates that a noncompensable, or 0 percent, disability rating is warranted.  38 C.F.R. § 4.85(e).  The audiometric findings combine for a Roman numeral I for the left ear, per Table VI.  See 38 C.F.R. § 4.85.  



The Board has also reviewed the additional VA treatment records within the claims file which are negative for the Veteran’s complaints of hearing difficulty.  The Board has considered the Veteran’s assertions regarding exposure to acoustic trauma in the record, which is probative insofar as it reports observable symptoms, such as difficulty hearing.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, to the extent that such lay statements assert entitlement to an increased disability rating, they are less probative than the objective evidence of record discussed herein which permit the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results.   

For the reasons described above, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran’s left ear hearing loss disability. See 38 C.F.R. § 4.71a, Diagnostic Code 6100.  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.

3. Entitlement to an initial disability rating in excess of 10 percent for cervical spine spondylosis. 

The Veteran asserts that she warrants a 100 percent disability evaluation for her cervical spine disability.  The Veteran has a 10 percent disability rating for cervical spine spondylosis under Diagnostic Code 5237, 38 C.F.R. § 4.71a. 

After review of the evidence of record both medical and lay, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for an increase in the initial disability rating for the cervical spine disability in excess of 10 percent for any period on appeal.

Spine disabilities are rated pursuant to the criteria under the General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. 

A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237.

Following the criteria, Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 cervical spine is 340 degrees. 

In July 2013, a VA examiner reported that a February 2012 MRI noted that the Veteran had cervical spondylosis.  The examiner reported that the Veteran’s cervical spine flexion was to 45 degrees and that she had a combined range of motion of 295 degrees for the cervical spine.

A March 2016 VA examiner reported a diagnosis of cervical strain for the Veteran.  The examiner reported that the Veteran’s flexion was to 45 degrees and she had a total range of motion for the cervical spine of 340 degrees.  The examiner reported that the Veteran was negative for guarding or spasm and vertebral body heights and disc spaces were preserved.  The Veteran was negative for cervical pain upon examination.  The Veteran performed repetitive use testing with at least three repetitions without loss of function or range of motion. The examiner reported that the Veteran was negative for objective evidence of localized tenderness or pain on palpitation for the joint or associated tissue of the cervical spine.  The examiner noted no functional impact related to the Veteran’s cervical spine disability.  The examiner noted that the Veteran was negative for arthritis. The examiner explained that it would be speculative to report additional range of motion loss or whether pain, fatigability or incoordination could significantly limit the Veteran’s functional ability during flare-ups or when the cervical spine is used repeatedly over a period of time as the Veteran was not having a flare-up at the time of the examination.

The Board notes that at no time has the evidence of record shown that the Veteran has a forward flexion to 30 degrees or less or a combined range of motion of 170 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis to warrant a 20 percent rating.  

Notably, in March 2016, a VA examiner reported that the Veteran was noted as not having pain upon examination and her range of motion had increased to a fully normal range of motion.  The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran’s disability picture. The criteria for the spine specifically contemplate pain, and the Veteran’s pain level is contemplated by the 10 percent rating.

For the reasons described above, the Board finds that the preponderance of the evidence is against an increase in the initial disability rating for cervical spine spondylosis.  Diagnostic Code 5237, 38 C.F.R. § 4.71a.  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.

4. Entitlement to an initial disability rating in excess of 10 percent for tinnitus.

The Veteran asserts that her tinnitus disability should be rated higher than the currently-assigned 10 percent rating. 

Tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a maximum 10 percent evaluation for recurrent tinnitus. Note (2) states that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. Id. A higher evaluation for tinnitus is not available in the Schedule.

The Veteran underwent a VA audiological examination in July 2013, which showed that the Veteran had tinnitus, which was due to working in a warehouse and being exposed to fork lifts, diesel trucks and firing weapons during her military service. The Veteran reported that her tinnitus symptoms manifested as ringing in the left ear, which began during service.  The Veteran was afforded another VA audiological examination in March 2016 in which the examiner reported that the Veteran’s tinnitus does not impact her ordinary conditions of daily life including her ability to work.

The Board has reviewed the evidence of record and finds that a disability rating in excess of 10 percent for tinnitus is not warranted during the appeal. Specifically, the Veteran is already in receipt of the maximum schedular disability rating for this disability and her disability picture is not so unique as to be outside of what is contemplated by the schedular rating, namely, symptoms of ringing and pressure in the ears. Such symptoms are contemplated by the Schedule. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

5. Entitlement to an initial disability rating in excess of 10 percent for tinea versicolor.

The Veteran asserts that her tinea versicolor warrants a 100 percent disability rating. The Veteran’s tinea versicolor is currently evaluated at 10 percent disabling effective May 24, 2014, under Diagnostic Code 7806, 38 C.F.R. § 4.118.

After review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial disability rating for the Veteran’s tinea versicolor.  Specifically, the Veteran’s tinea versicolor has not been documented as covering 20 percent or more of the entire body, 20 percent or more of exposed area or showing use of systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period.

Under Diagnostic Code 7806, the next higher disability rating is a 30 percent disability rating which is warranted for dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or requires systemic therapy or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period.  38 C.F.R. § 4.118.

A 60 percent rating is warranted for dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or requires constant or near-constant systemic therapy during the past 12-month period.  Id.

In Johnson v. Shulkin, 862 F.3d 1531, 1354-56 (Fed. Cir. 2017), the Federal Circuit distinguished between topical and systemic therapies and held that “a topical therapy could be considered either a systemic therapy or topical therapy based on the factual circumstances of each case.”

In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims LEXIS 1314 (Vet. App. Sept. 28, 2018), the United States Court of Appeals for Veterans Claims (Court) interpreted Johnson v. Shulkin, and in part, held that the Board must determine whether a topical treatment operates by affecting the body as a whole in treating the Veteran’s skin condition.  

Turning to the relevant evidence of record, upon VA examination in July 2013, a VA examiner reported that the tinea versicolor was on the Veteran’s upper arms, back and torso but not the face.  The Veteran’s tinea versicolor represented 15 percent of her total body area, none of which was exposed.

In March 2016, a VA examiner reported that the Veteran had not treated with a topical treatment in the past 12 months for any skin condition.  The examiner also reported that the Veteran’s tinea versicolor affected less than 5 percent of the Veteran’s total body area and was not on her face neck or hands. 

The Board finds that the July 2013 and March 2016 VA examiners findings are probative and persuasive as to the crucial rating criteria required for an increase in the Veteran’s current disability rating for tinea versicolor.  The Board notes that at no time during the pendency of this appeal has the Veteran’s tinea versicolor has not manifested to 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or required systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period.  Further, Johnson and Burton are not applicable in this case because the evidence of record does not support that the Veteran uses systemic therapy or topical therapy.  Moreover, the additional VA treatment records are negative for any complaints related to tinea versicolor.  

In conclusion, the Board finds that the preponderance of the evidence is against an increase in the initial disability rating in excess of 10 percent for the Veteran’s tinea versicolor for any period on appeal. Diagnostic Code 7806, 38 C.F.R. § 4.118.  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.

6. Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with mixed anxiety and depressed mood.

The Veteran asserts that she warrants a 100 percent disability rating for adjustment disorder with mixed anxiety and depressed mood under Diagnostic Code 9400, 38 C.F.R. § 4.130.

After careful review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial disability evaluation is excess of 10 percent for the Veteran’s adjustment disorder with mixed anxiety and depressed mood for any period on appeal.

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including generalized anxiety disorder:

A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id.

A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

Under the formula, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive but serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating. In determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas and the regulation requires an ultimate factual conclusion as to the veteran's level of impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411.

Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” Id. 

The relevant evidence of record shows that a July 2013 VA examiner reported that the Veteran had symptoms of anxiety and depression.  The VA examiner also reported that the Veteran was taking Prozac and Ambien.  The examiner noted that the Veteran’s mood and judgment were normal. 

A January 2016 VA treatment note shows that the Veteran stopped taking Prozac on her own.  The Veteran was restarted on Prozac 20 mg per day, which she had been on for a few years, and declined further referral back to a VA psychology consult as she wanted to see how she did on medication.  

In March 2016, a VA examiner reported that the Veteran had an adjustment disorder with mixed anxiety and depressed mood.  When asked which of the following criteria best summarized the Veteran’s level of occupational and social impairment, the examiner checked “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication,” which is the criteria for a 10 percent rating.  While the adjudicator makes the determination of what evaluation is warranted for the service-connected acquired psychiatric disability, the examiner’s conclusion that the Veteran’s acquired psychiatric disability was best summarized by the criteria described under the 10 percent evaluation is evidence against a finding that the Veteran’s acquired psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

The March 2016 VA examiner also noted that following the Veteran’s discharge from service she met with a psychologist on June 2, 2014 and June 16, 2014 and had a social work consult in July 2014.  The examiner reported that there were no subsequent notes from VA mental health providers related to the Veteran.  The examiner also reported that the Veteran married in 2013, divorced in 2014 and is currently in a two-year relationship. The examiner noted that the Veteran was a full-time college student earning A’s and B’s in a medical administration major. The examiner also noted that the Veteran was recently hired for full-time employment.  The examiner reported that the Veteran and her boyfriend enjoyed going out to eat and to the movies.  The Veteran informed the examiner that she enjoyed watching football and basketball.  The examiner reported that the Veteran’s anxiety was not frequent and her last “anxiety attack” was in February 2016.  

In March 2016, a VA sleep study found that the Veteran had sleep deprivation, poor sleep hygiene and an inconsistent sleep schedule.  In April 2016, the Veteran was referred for a VA psychology consult by a VA sleep clinician. The VA treatment note shows that the Veteran was evaluated for insomnia.  The Veteran reported that she estimated sleeping eight hours a night and occasionally taking a two to three-hour nap in the afternoon if her schedule allowed for such. 

In May 2016, a private medical provider Dr. H-G, Ph.D., reported that the Veteran attended college but was unable to graduate.  The private medical provider reported that the Veteran was taking Prozac and seeing a VA psychiatrist, as needed, three to four times a year.  The private medical provider noted that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking and or mood.  Dr. H-G opined that the Veteran suffers from adjustment disorder that hinders her from maintaining substantially gainful employment. The private medical provider reported that the Veteran was in a three-year relationship.  The private medical provider also reported that the Veteran was socially isolated and withdrawn.  Dr. H-G, reported reviewing the Veteran’s service treatment records from 2012 and the July 2013 VA examination.  In support of her opinion, Dr. H-G an article by Elizabeth Savoca and Robert Rosenheck, The civilian labor market experiences of Vietnam-era veterans: The influence of psychiatric disorders, The Journal of Mental Health Policy and Economics, 3, 199-207 (2000).

The Board finds that the VA examinations and VA treatment records are more probative and persuasive evidence of the Veteran’s overall mental health picture rather than the findings and opinion by Dr. H-G.  Specifically, a January 2016 VA treatment record shows that the Veteran denied a referral for mental health treatment, and restarted medication, which she stopped on her own volition, that had previously helped her.  In April 2016, upon being referred by the VA sleep clinic to a VA psychologist, the Veteran did not complain of depression or anxiety but only of insomnia.  Further, VA examiners show that the Veteran’s mood was not manifested with occupational and social impairment with deficiencies in most areas, but that her mood was normal with mild symptoms.  Also, the article submitted by Dr. H-G is not probative evidence in the Veteran’s case.  The article discusses the impact on employment for Vietnam combat-veterans diagnosed with PTSD and other mental health disorders. However, the evidence of record does not support that the Veteran is unemployed or had difficulty maintaining employment and neither has the Veteran applied for a total rating based on individual employability due to service-connected disabilities (TDIU) claim.  The evidence shows that the Veteran is employed.

Further, the Board finds that the Dr. H-G’s assertions are inconsistent with the overwhelming evidence of record.  For example, Dr. H-G asserted that the Veteran is isolated and socially withdrawn.  However, Dr. H-G and the March 2016 VA examiner report that the Veteran is in a long-term relationship.  The March 2016 examiner also reported that the Veteran and her long-term boyfriend go to the movies and dinner, and the Veteran enjoys watching sports.  Dr. H-G asserts that the Veteran’s is unemployable, while Dr. H-G and the March 2016 VA examiner report that the Veteran is currently employed full-time. The Board notes that additional VA treatment records do not document in any manner that the Veteran has occupational and social impairment with deficiencies in most areas or is unable to maintain employment.  

Accordingly, for the reasons described above, the Board finds that the preponderance of the evidence is against an increase in the initial disability rating for the adjustment disorder with mixed anxiety and depressed mood in excess of 10 percent.  Diagnostic Code 9400, 38 C.F.R. § 4.130.  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. 

7. Entitlement to an initial disability rating in excess of 10 percent for right iliotibial band syndrome with limited flexion.

8. Entitlement to an initial compensable disability rating for right iliotibial band syndrome with limited extension.

9. Entitlement to an initial compensable disability rating for right iliotibial band syndrome with impairment of the thigh.

The Veteran asserts that her right hip disabilities involving iliotibial band syndrome with limited flexion, limited extension and impairment of the right thigh each warrant a 100 percent disability rating. The Veteran was awarded a 10 percent disability evaluation for pain with flexion and extension motion of the right hip pursuant to 38 C.F.R. § 4.59.  

After a careful review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial disability evaluation in excess of 10 percent the Veteran’s right hip disabilities.  The Board finds that without evidence of limitation in range of motion, an increase in the Veteran’s right hip disability evaluation is not warranted under any of the applicable diagnostic codes set forth below.

Limitation of motion of the hip is evaluated under Diagnostic Codes 5251 for extension, 5252 for flexion, and 5253 for adduction, abduction, and rotation.

Diagnostic Code 5251 provides for a maximum 10 percent rating for hip extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251.

Diagnostic Code 5252 provides for a 10 percent rating for hip flexion limited to 45 degrees; for a 20 percent rating for hip flexion limited to 30 degrees; a 30 percent rating for hip flexion limited to 20 degrees; and a maximum 40 percent rating for hip flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252.

Diagnostic Code 5253 provides for a 10 percent rating for limitation of rotation (cannot toe-out more than 15 degrees for the affected leg) or for limitation of adduction (cannot cross legs); and a 20 percent rating for limitation of abduction when motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253.

In July 2013, a VA examiner reported that the Veteran had right hip pain with onset in 2010. The examiner reported right hip flexion to 115 degrees, extension to 20 degrees and abduction to 50 degrees. The examiner noted that the Veteran could cross her legs and rotation was not limited as she could move her toes out. The examiner noted evidence of pain. The Veteran was able to perform repetitive use testing on the right hip without loss in range of motion.  The Veteran reported no flare-ups.

Initially, in May 2014, the RO did not find that the Veteran warranted a compensable disability rating for any of her right hip disabilities.  

A March 2016 VA examiner diagnosed the Veteran with right hip strain.  The examiner reported that the Veteran’s hip was negative for crepitus and evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  The examiner reported that the Veteran has flexion to 125 degrees, extension to 30 degrees abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees and internal rotation to 40 degrees.  The Veteran reported that she did not have flare-ups.  The Veteran was negative for weight bearing pain.  The examiner reported that any weakness, fatigability or incoordination due to pain could not be determined.  The examiner reported that pain was exhibited with flexion and extension of the Veteran’s right hip. 

Subsequent to the March 2016 VA examination, the RO granted the Veteran a 10 percent disability evaluation for right hip pain exhibited with flexion and extension. 38 C.F.R. § 4.59.

With respect to the right hip range of motion, the record shows, at worst, hip extension limited to 20 degrees, flexion limited to 115 degrees, abduction limited to 45 degrees, adduction limited to 25 degrees, internal rotation limited to 40 degrees, and external rotation limited to 60 degrees. None of these findings warrant an increased rating under the applicable Diagnostic Codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253.

The Board finds that the Veteran is already receiving a compensable rating for symptoms including pain, fatigue, weakness, and incoordination associated with motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca criteria.  Therefore, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment which are not shown by the evidence of record.  

In conclusion, the Board finds that the preponderance of the evidence of record is against an initial disability rating in excess of 10 percent for right hip disabilities under the applicable Diagnostic Codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253.  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. 

10. Entitlement to an initial compensable disability rating for right knee strain.

11. Entitlement to an initial compensable disability rating for left knee strain.

The Veteran asserts that she warrants a 100 percent disability rating for her right and left knee strains.  The Veteran is currently evaluated with noncompensable disability evaluations for her right knee and left knee under Diagnostic Code 5257, 38 C.F.R. § 4.71a.

After careful review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran’s right knee and left knee strain for any period on appeal.

Under Diagnostic Code 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe.  38 C.F.R. § 4.71a.

In July 2013, a VA examiner reported that the Veteran has bilateral knee pain. The examiner reported that the Veteran’s bilateral knee flexion was to 140 degrees and extension was normal.  The Veteran was negative for pain with active motion bilaterally and negative for pain after repetitive motion.

A March 2016 VA treatment note shows that the Veteran had begun an exercise program and was trying to work on her weight.  The Veteran denied any treatment for her knees, no assistive device, and no surgery.

In March 2016, a VA examiner reported that the Veteran had full range of motion for both knees with flexion and extension bilaterally to 140 degrees.  The examiner noted the Veteran was negative for pain, during the examination, weight bearing pain, localized tenderness or pain on palpitation of the joint or associated soft tissue and crepitus. The examiner reported that the Veteran was negative bilaterally for lateral instability, joint instability, a meniscus condition or degenerative or traumatic arthritis and she has not had treatment for her knees.  

The range of motion testing conducted during the VA examinations shows that the Veteran’s knees do not have limited motion.  The Veteran did not report having flare-ups and the VA examinations were negative for the presence of any additional functional impairment.  Therefore, without evidence of recurrent subluxation or lateral instability an initial compensable disability rating is not warranted under Diagnostic Code 5257, 38 C.F.R. § 4.71a. The Board has considered whether a compensable rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that compensable ratings are not warranted for the Veteran’s disability picture.  

In conclusion, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran’s right knee or left knee strain for any period on appeal.  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.

12. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar strain.

The Veteran asserts that the thoracolumbar strain warrants a 100 percent disability rating.  The Veteran’s disability is assigned a 10 percent rating for painful motion with right lateral rotation pursuant to 38 CFR § 4.59.

After review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial disability rating in excess of 10 percent for the thoracolumbar strain for any period on appeal. 

Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula).  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Spinal Formula.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees.  Id., Note (2).  Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  Id., Note (1).  

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. Id.  

The relevant evidence of record shows that the Veteran was afforded VA examinations in July 2013 and March 2016. 

The Veteran was diagnosed with thoracolumbar strain in July 2013. In the July 2013 and March 2016 VA examinations, the Veteran’s flexion was to 90 degrees and she had a combined range of motion greater than 235 degrees. 

The March 2016 VA examiner reported that the Veteran had pain with right lateral rotation which did not result in functional loss. The evidence of record is negative for weight bearing pain, ankylosis, guarding, spasms, IVDS, neurologic abnormalities or use of an assistive device. 

The RO subsequently granted a 10 percent disability evaluation based on painful motion with right lateral rotation.  See 38 CFR § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 42-43.

The Board notes that ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran.  Regarding relevant neurological findings, the March 2016 examiner noted that the Veteran was negative for any abnormal neurologic findings. 

There is no other evidence in significant conflict with these findings.  Therefore, the Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. 

The Board finds that the Veteran is already receiving a compensable rating for symptoms including pain, fatigue, weakness, and incoordination associated with motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca criteria.  Therefore, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment which are not shown by the evidence of record.  The Board also finds that the evidence of record does not support an increase in excess of the currently assigned disability evaluation given the Veteran’s flexion to 90 degrees and combined range of motion over 235 degrees.  

Moreover, the Veteran has not described limited motion that would warrant a higher rating.  Absent indication by the Veteran or other evidence suggesting other symptoms of additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary.  Given the above, a higher rating is not warranted based on limitation of motion.  

For the reasons noted above, the Board finds that the preponderance of the evidence is against an increase in the Veteran’s initial disability rating in excess of 10 percent for the thoracolumbar strain.  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.

13. Entitlement to an initial compensable disability rating for right shoulder scars, status-post surgery.

The Veteran asserts that she warrants a 100 percent disability rating for her right shoulder surgery scars. 

The Veteran currently has a noncompensable rating for her right shoulder scars, status-post surgery under Diagnostic Code 7805, 38 C.F.R. § 4.118

The Board will consider not only the criteria under currently-assigned diagnostic codes, but also the criteria set forth in other potentially applicable diagnostic codes. Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, evaluates any disabling effect(s) not considered in a rating provided under such Diagnostic Codes. 38 C.F.R. § 4.118, Diagnostic Code 7805.

Here, the Veteran was afforded VA examinations in July 2013 and March 2016 for her right shoulder surgery scar.  The Veteran’s right shoulder surgery was in September 2012 related to an injury in 2010.

The July 2013 VA examiner reported that the Veteran’s three port right shoulder surgery scars measurements were less than 5 percent of the total body surface area. The examiner also reported that the right shoulder surgery scars were linear, with no depression, tissue loss or adherence.  The March 2016 VA examiner reported that the Veteran’s three right shoulder surgery scars were approximately 3.04 cm2 in total area and that the scars were not pain or unstable. As the Veteran’s right shoulder surgery scars are not unstable or painful an increase to a compensable disability rating is not warranted.  Moreover, the evidence of record is not in conflict with this finding. 

Finally, as the preponderance of the evidence is against a finding that the Veteran’s disability picture would warrant an evaluation under another diagnostic code, an increased rating under Diagnostic Code 7805 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7805.

In conclusion, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran’s right surgery scars. 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.

14. Entitlement to an initial disability rating in excess of 10 percent for right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention.

The Veteran asserts that her right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention warrants a 100 percent disability rating.

The Veteran has a staged rating for the right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention. Prior to February 15, 2015, the disability was evaluated as noncompensable. Diagnostic Code 5201, 38 C.F.R. § 4.71a.  From February 15, 2015 and thereafter, the disability is evaluated at 10 percent disabling, effective February 15, 2015 due to painful motion. 38 C.F.R. § 4.59. 

Prior to February 15, 2015

Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, the following ratings apply to limitation of motion of the minor right arm extremity, as the Veteran is left side dominant: a 20 percent rating is warranted when arm motion is limited to shoulder level; a 20 percent rating is warranted when arm motion is limited to midway between the side and shoulder level; and a 30 percent rating is warranted when arm motion is limited to 25 degrees from the side. Id.

The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. Id., Plate I.

In July 2013, a VA examiner diagnosed the Veteran with a right shoulder labral tear, impingement, adhesive capsulitis, status-post surgical intervention with residual pain and loss of range of motion.  The Veteran had reported experiencing right shoulder pain in 2011.  Physical examination was negative for pain with active motion of the right shoulder.  The shoulder did not show recurrent shoulder dislocation. The examiner reported that the Veteran was negative for objective evidence of pain following three repetitive motions, but the Veteran had additional limitations after three repetitions of range of motion.  The examiner reported that the Veteran had initial and repetitive-use right flexion to 155 degrees, abduction to 150 degrees, and internal and external rotation to 90 degrees.  The right shoulder was positive for the empty-can, Neer and Hawkins tests.

Considering the evidence of record prior to February 15, 2015, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s right shoulder disability. The evidence of record showed that the Veteran’s right shoulder did not manifest with ongoing pain, pain with motion or symptoms such as crepitus or recurrent dislocation.  Further, the Veteran was negative for additional limitations with repetitive testing, the evidence does not show that the right arm was limited to shoulder level or less warranting a compensable disability rating.  The Board has considered whether a compensable rating was warranted under 38 C.F.R. §§ 4.40, 4.45, 4.59 DeLuca and Mitchell criteria, however a compensable rating is not warranted prior to February 15, 2015, given the Veteran’s disability picture.  Accordingly, prior to February 15, 2015, the Veteran’s right shoulder labral tear, impingement, adhesive capsulitis, status-post surgical intervention has not manifest with symptoms warranting a compensable disability rating. 

February 15, 2015 and thereafter

The Veteran appealed the RO’s findings and was afforded another VA examination in March 2016.  The VA examiner reported that in February 2015, the Veteran was treated four times for right shoulder pain.  The examiner reported that the February 2015 VA treatment notes showed that the Veteran’s right shoulder pain was constant and sharp.  The examiner noted that the Veteran had evidence of crepitus. The examiner reported that the Veteran had pain with flexion and abduction. The examiner reported that the Veteran’s right shoulder had flexion and abduction to 180 degrees and internal and external rotation to 90 degrees with no additional functional loss or range of motion after repetitive testing. The Veteran was also negative for the Hawkins and empty-can tests.

The Veteran was granted a 10 percent rating based on painful motion.  The Board finds that the Veteran is already receiving a compensable rating for symptoms including pain, fatigue, weakness, and incoordination associated with motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca criteria.  Therefore, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment which are not shown by the evidence of record.  The Veteran’s range of motion was noted as normal.  

For the reasons noted above, the Board finds that the preponderance of the evidence is against compensable disability rating prior to February 15, 2015 and in excess of 10 percent thereafter for the Veteran’s right shoulder labral tear, impingement, adhesive capsulitis, status post-surgical intervention. See 38 C.F.R. § 4.71a, Diagnostic Code 5201.  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.	

15. Entitlement to a compensable disability rating for left shoulder trapezius strain.

The Veteran asserts that her left shoulder trapezius strain, warrants a 100 percent disability rating.

The Veteran has staged rating for her left shoulder disability under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (noted above).  Prior to February 15, 2015. The disability was noncompensable and after February 15, 2015, the disability was evaluated at 10 percent disabling for painful motion.  From March 16, 2016 and thereafter the Veteran’s left shoulder disability has a noncompensable disability evaluation under 38 C.F.R. § 4.71a Diagnostic Code 5201.  

Prior to February 15, 2015

The Veteran was afforded a VA examination in July 2013.  The VA examiner reported that the Veteran was left hand dominant and began experiencing left shoulder pain in 2010 had not had any treatment or flare-ups of pain.  The examiner diagnosed the Veteran with left shoulder trapezius strain.  The Veteran was negative for recurrent shoulder dislocation. The examiner reported that the Veteran had left flexion to 170 degrees, abduction to 160 degrees, and internal and external rotation to 90 degrees.  Repetitive-use testing showed left shoulder flexion to 170 degrees and abduction to 155 degrees.  The examiner reported pain with resisted external rotation of the left shoulder. 

While the July 2013 VA examiner reported pain with resisted external rotation of the left shoulder, the Board notes that pain alone (or painful motion) does not warrant a rating under Diagnostic Codes pertaining to limitation of motion such as Diagnostic Code 5201. The pain must result in functional loss by affecting some aspect of the normal working movements of the shoulder, which is not shown by the evidence of record prior to February 15, 2015. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59; DeLuca v. Brown, 8 Vet. App. 206-07.

Accordingly, the preponderance of the evidence is against a compensable disability rating under 38 C.F.R. § 4.71a Diagnostic Code 5201 for the left shoulder disability prior to February 15, 2015.

February 15, 2015 to March 15, 2016

In March 2016, the Veteran was afforded another VA examination.  The examiner reported that the Veteran had all normal ranges of motion for the left shoulder. The examiner reported that the Veteran was able to perform at least three repetitive repetitions without additional functional loss or loss in range of motion. The examiner also reported that in February 2015 the Veteran was treated with physical therapy for her shoulder and continued to have symptoms of rotator cuff strain. 

The RO increased the Veteran’s left shoulder disability to 10 percent disabling due to painful motion in February 2015. 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. 42-43.

March 16, 2016 and thereafter

The March 2016 VA examiner noted specifically that the Veteran had physical therapy for her right shoulder in February 2015.  At the time of the March 16, 2016 VA examination, the Veteran was negative for left shoulder pain, crepitus and any functional loss.  

The VA treatment records and VA examinations do not support a finding for a compensable rating under 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.59, DeLuca or Mitchell, because the Veteran has not manifested with ongoing pain with motion or functional loss due to pain, weakness or incoordination or fatigability. 

In conclusion, the Board finds that the preponderance of the evidence is against a compensability rating prior to February 15, 2015, a disability rating in excess of 10 percent disabling from February 15, 2015 through March 15, 2016 or a compensable disability rating from March 16, 2016 and thereafter. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 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.	

16. Entitlement to an initial compensable disability rating for left ingrown toenails.

The Veteran asserts that she warrants a 100 percent disability rating for her left ingrown toenails.  Currently, the Veteran has a noncompensable disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7806 for her left ingrown toenails. 

After review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable disability rating for the Veteran’s left ingrown toe nails.

Under Diagnostic Code 7806, a noncompensable disability rating is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy required during the past 12-month period. Id. A 10 percent disability rating is warranted for dermatitis or eczema affecting 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, or; requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A maximum schedular 60 percent disability rating is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Id. Alternatively, the condition is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-05), depending upon the predominant disability. Id. 

The Veteran was afforded VA examinations in July 2013 and March 2016.  

The July 2013 VA examiner reported that, initially, the Veteran reported having ingrown toenails bilaterally.  The Veteran’s right ingrown toenail was removed and she was waiting to have the left ingrown toe nail removed.  The examiner reported that the left great toenail had an ingrown toenail laterally and the second left toenail was growing medially. The left ingrown toenails represented less than 5 percent of the total body surface area.  

In March 2016, the VA examiner reported that the Veteran’s right toenail was healed and there was no current left ingrown toenail.  The examiner found that the Veteran had no current signs of an ingrown toenail. 

Accordingly, the Board finds that the current noncompensable disability evaluation is appropriate for the Veteran’s left ingrown toenail.  The Board notes that the previous left ingrown toenail noted by the July 2013 VA examiner has resolved completely. The Board also notes that an additional disability evaluation is not warranted under another Diagnostic Code.

Therefore, the Board finds that the preponderance of the evidence is against an initial compensable disability evaluation for the Veteran’s left ingrown toenails. See under 38 C.F.R. § 4.118, Diagnostic Code 7806. 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.	

17. Entitlement to an initial compensable disability rating for migraine headaches.

The Veteran asserts that her migraine headaches warrant a 100 percent disability evaluation.  

After review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran’s migraine headaches evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100.

Diagnostic Code 8100 provides that a 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. 

In July 2013, a VA examiner reported that the Veteran had headaches four to five times a month and lasted from two to six hours.  The examiner reported that the Veteran’s migraine headaches do not impact her occupation resulting in work problems and do not impact her daily activities.  The examiner noted that the Veteran’s response to medication for her migraine headaches was fair and that the Veteran reported that Motrin does not alleviate her migraine headaches while Tylenol PM could help.

In September 2015, a private medical provider, Dr. S., completed a generic medical form and reported that the Veteran has three or more headaches per month and that the Veteran must leave work early three or more days per month due to headaches.  Dr. S. also reported that the Veteran has trouble concentrating three or more days per month due to her migraine headaches. Dr. S. reported that the Veteran has prostrating headaches and will lie down and close her eyes to get relief.  Dr. S. refers to a July 2013 VA general examination in which, as noted above, the Veteran asserted that motrin did not alleviate her migraine headaches.  

A March 2016 VA examiner reported that the Veteran was negative for prostrating migraines or non-migraine headaches.  The examiner reported that the Veteran’s migraines headaches do not impact her ability to work.  The examiner noted that the Veteran asserted that she has headaches a whole month, she can take a nap and wake up and the headache is gone but as soon as she gets up the headache returns.

The Board finds the July 2013 and March 2016 VA examiners findings and opinions more probative and persuasive than Dr. S.’s findings and opinion.  Specifically, Dr.S.’s assertions and findings are not consistent with the overall evidence of record.  For example, the July 2013 VA examiner reported that Tylenol PM helped the Veteran’s migraine headaches and that the examiner found that migraine headaches did not impact the Veteran’s work or daily activities.  In January 2016, a VA treatment note shows that the Veteran reported that she stopped working to go to college.  In another March 2016 VA examination for mental disorders, the Veteran reported to the examiner that she is a student and was recently hired for full-time employment.  In May 2016, a private medical provider Dr. H-G also reported that the Veteran was currently employed.  Moreover, VA treatment records are negative for consistent treatment for someone with migraine headaches that last have lasted for a month or for headaches that are four to six hours in duration. 

The Board does not find the assertions made by the Veteran are credible given the severity of the migraine headache symptoms the Veteran reported and the Veteran’s ability to remain employed and to attend school. Therefore, the statements made by the Veteran are afforded lessened probative value.  The Board finds that Dr. S. reiterates the Veteran’s assertions and does not provide objective medical evidence upon which a finding can be based.  Thus, the Board accords more probative value to the objective medical findings by the VA examiners which do not endorse that the Veteran’s migraine headaches are prostrating attacks.  

Accordingly, without migraine headaches that are characteristic of prostrating attacks averaging one in two months over the last several months a compensable disability rating is not warranted. 

In conclusion, the Board finds that the preponderance of the evidence is against an initial compensable disability evaluation for the Veteran’s migraine headaches. See, Diagnostic Code 8100, 38 C.F.R. § 4.124a.  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.

18. Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus with over-pronation.

The Veteran asserts that her bilateral pes planus warrants a 100 percent disability rating. The Veteran has a current disability rating of 10 percent for bilateral pes planus under Diagnostic Code 5276, 38 C.F.R.§ 4.71a.

As stated above, the Board will not address the Veteran’s bilateral pes planus from March 18, 2015 through May 31, 2015 and August 19, 2015 through October 31, 2015 because the Veteran is already in receipt of a 100 percent rating for those periods.  

After review of the evidence of record both lay and medical, the Board finds that the preponderance of the evidence is against an initial disability rating in excess of 10 percent for any period on appeal for the Veteran’s bilateral pes planus.

Under Diagnostic Code 5276, a 20 percent evaluation is warranted for symptoms which are severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities unilaterally. A 30 percent evaluation is warranted for the aforementioned severe symptoms when manifested bilaterally; or when symptoms are pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances unilaterally. A 50 percent evaluation is warranted for the aforementioned pronounced symptoms when such symptoms manifest bilaterally. The 50 percent evaluation is the highest rating available for this condition. 38 C.F.R.§ 4.71a.  

The words "moderate," "severe," and "pronounced" are not defined by Diagnostic Code 5276. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6.

The relevant evidence of record shows that the Veteran’s bilateral pes planus has not manifested with severe symptoms; objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities unilaterally.

The July 2013 and March 2016 VA examiner reported that Veteran experienced pain in her feet bilaterally due to her pes planus.  

The July 2013 VA examiner reported that the Veteran reported having bilateral foot pain from standing. The Veteran was negative for foot or toe deformities and had moderate pes planus weight-bearing line over or medial to the great toe.

In March 2016, a VA examiner reported that the Veteran’s foot pain was not accentuated on use, the Veteran did not use orthotics and the Veteran was negative for characteristic callouses, malunion or nonunion of the tarsal or metatarsal bone. The examiner reported decreased longitudinal arch height bilaterally and pain with use of both feet.  

Accordingly, the Veteran’s overall disability picture does not manifest with rating criteria for an initial disability rating in excess of 10 percent because the evidence of record is negative for severe; objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities unilaterally.  Moreover, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for this appeal period.

For the reasons stated above, the Board finds that the preponderance of the evidence is against a claim for an initial disability rating in excess of 10 percent for bilateral pes planus from May 24, 2014 and thereafter, outside of the total disability ratings provided for surgery and convalescence.  38 C.F.R.§ 4.71a, Diagnostic Code 5276.  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.

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	E. Morgan, Associate Counsel