Citation Nr: 20005997
Decision Date: 01/24/20	Archive Date: 01/23/20

DOCKET NO. 17-28 576A
DATE: January 24, 2020

ORDER

Entitlement to service connection for a right knee disorder is granted.

Entitlement to service connection for a breast disorder is denied.

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for an allergic disorder is denied.

Entitlement to service connection for an eye disorder is denied.

Entitlement to service connection for cutis laxa is denied.

Entitlement to service connection for radiculopathy the right lower extremity is granted.

Entitlement to service connection for radiculopathy of the left lower extremity is granted.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for a urinary tract disorder is denied.

Entitlement to a disability rating higher than 70 percent for the service-connected psychiatric disorder is denied.

Entitlement to a disability rating higher than 10 percent for the service-connected low back disability is denied.

Entitlement to a disability rating higher than 10 percent for the service-connected tinnitus is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected traumatic brain injury (TBI) is denied.

Entitlement to a disability rating of 50 percent, but not higher, for the service-connected headaches is granted.

Entitlement to a disability rating higher than 0 percent for the service-connected scar on the back is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected hypertension is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected tinea pedis is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected facial scar is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected stuttering is denied.

Entitlement to a disability rating higher than 0 percent for the service-connected right finger disability is denied.

Entitlement to a disability rating higher of 10 percent, but not higher, for the service-connected left ankle disability is granted.

Entitlement to a disability rating higher than 10 percent for the service-connected left knee disability is denied.

Entitlement to a disability rating higher than 10 percent for the service-connected left hip disability is denied.

Entitlement to a disability rating higher than 10 percent for the service-connected right hip disability is denied.

Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected psychiatric disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected low back disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected tinnitus is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected TBI is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected headaches is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected scar on the back is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected hypertension is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected tinea pedis is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected facial scar is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected stuttering is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected right finger disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left ankle disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left knee disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left hip disability is denied.

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected right hip disability is denied.

FINDINGS OF FACT

1. A right knee disorder is related to service.

2. A breast disorder is not related to service.

3. The Veteran does not have a hearing loss disability for VA purposes.

4. An allergic disorder is not related to service.

5. An eye disorder is not related to service.

6. Cutis laxa is not related to service.

7. Radiculopathy of the right lower extremity is related to service.

8. Radiculopathy of the left lower extremity is related to service.

9. Sleep apnea is not related to service.

10. A urinary tract disorder is not related to service.

11. The service-connected acquired psychiatric disability has not been manifested by total occupational and social impairment.

12. The service-connected thoracolumbar spine disability has been manifested by painful motion that is not impaired to a compensable degree.

13. The Veteran is only entitled to a single rating for tinnitus. 

14. The service-connected TBI has been asymptomatic with the exception of symptoms that are already separately rated.

15. The service-connected headaches have been manifested by very frequent and prolonged attacks of migraine headache pain.

16. The service-connected scar of the back is not compensably disabling under the rating schedule for disabilities of the skin.

17. The service-connected hypertension has not been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more.

18. The service-connected tinea pedis is not compensably disabling under the rating schedule for disabilities of the skin.

19. The service-connected facial scar is not compensably disabling under the rating schedule for disabilities of the skin.

20. The service-connected stuttering is not compensably disabling under the rating schedule for neurological disabilities.

21. The service-connected right hand finger disability has been manifested by painful motion which is not impaired to a compensable degree.

22. The service-connected left ankle disability is manifested by painful motion which is not impaired to a compensable degree.

23. The service-connected left knee disability has been manifested by painful motion which is not impaired to a compensable degree.

24. The service-connected left hip disability has been manifested by painful motion, which is not impaired to a compensable degree.

25. The service-connected right hip disability has been manifested by painful motion, which is not impaired to a compensable degree.

26. The combined service-connected disabilities have rendered the Veteran unable to secure or follow a substantially gainful occupation.

27. The earliest date of a pending claim of entitlement to service connection for the service-connected psychiatric disability is November 6, 2013.

28. The earliest date of a pending claim of entitlement to service connection for the service-connected low back disability is November 6, 2013. 

29. The earliest date of a pending claim of entitlement to service connection for the service-connected tinnitus is November 6, 2013.

30. The earliest date of a pending claim of entitlement to service connection for the service-connected TBI is November 6, 2013.

31. The earliest date of a pending claim of entitlement to service connection for the service-connected headaches is November 6, 2013.

32. The earliest date of a pending claim of entitlement to service connection for the service-connected scar on the back is November 6, 2013.

33. The earliest date of a pending claim of entitlement to service connection for the service-connected hypertension is November 6, 2013.

34. The earliest date of a pending claim of entitlement to service connection for the service-connected tinea pedis is November 6, 2013.

35. The earliest date of a pending claim of entitlement to service connection for the service-connected facial scar is November 6, 2013.

36. The earliest date of a pending claim of entitlement to service connection for the service-connected stuttering is November 6, 2013.

37. The earliest date of a pending claim of entitlement to service connection for the service-connected right finger disability is November 6, 2013.

38. The earliest date of a pending claim of entitlement to service connection for the service-connected left ankle disability is November 6, 2013.

39. The earliest date of a pending claim of entitlement to service connection for the service-connected left knee disability is November 6, 2013.

40. The earliest date of a pending claim of entitlement to service connection for the service-connected left hip disability is November 6, 2013.

41. The earliest date of a pending claim of entitlement to service connection for the service-connected right hip disability is November 6, 2013.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018).

2. The criteria for service connection for a breast disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

3. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018).

4. The criteria for service connection for an allergic disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

5. The criteria for service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

6. The criteria for service connection for cutis laxa have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

7. The criteria for service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

8. The criteria for service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

9. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

10. The criteria for service connection for a urinary tract disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018).

11. The criteria for a disability rating higher than 70 percent for the service-connected psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2018).

12. The criteria for a disability rating higher than 10 percent for the service-connected low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018).

13. The criteria for a disability rating higher than 10 percent for the service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6260 (2018).

14. The criteria for a disability rating higher than 0 percent for the service-connected TBI have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8045 (2018).

15. The criteria for a disability rating of 50 percent for the service-connected headaches have not been met; the criteria for a rating higher than 50 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2018).

16. The criteria for a disability rating higher than 0 percent for the service-connected scar on the back have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7805 (2018).

17. The criteria for a disability rating higher than 0 percent for the service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2018).

18. The criteria for a disability rating higher than 0 percent for the service-connected tinea pedis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2018).

19. The criteria for a disability rating higher than 0 percent for the service-connected facial scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2018).

20. The criteria for a disability rating higher than 0 percent for the service-connected stuttering have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.4397, Diagnostic Code 6516 (2018).

21. The criteria for a disability rating higher than 0 percent for the service-connected right finger disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2018).

22. The criteria for a disability rating of 10 percent for the service-connected left ankle disability have been met; the criteria for a rating higher than 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2018).

23. The criteria for a disability rating higher than 0 percent for the service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2018).

24. The criteria for a disability rating higher than 10 percent for the service-connected left hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2018).

25. The criteria for a disability rating higher than 10 percent for the service-connected right hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2018).

26. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2018).

27. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected psychiatric disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

28. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected low back disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

29. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected tinnitus have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

30. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected TBI have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

31. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected headaches have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

32. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected scar on the back have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

33. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected hypertension have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

34. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected tinea pedis have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

35. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected facial scar have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

36. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected stuttering have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

37. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected right finger disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

38. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left ankle disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

39. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left knee disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

40. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected left hip disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

41. The criteria for an effective date earlier than November 6, 2013, for the grant of service connection for the service-connected right hip disability have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a veteran (the Veteran) who had active duty service from January 2006 to November 2013. 

This appeal comes before the Board of Veterans’ Appeals (Board) from May 2015 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

Service Connection—Law and Regulations

VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). 

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). 

For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b).

Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.”  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). 

However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(1).

The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(2). 

The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). 

The term “objective indications of chronic disability” includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). 

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Functional gastrointestinal disorders (excluding structural gastrointestinal diseases); Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multisymptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). 

Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. 

Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c).

After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54.

Entitlement to service connection for a right knee disorder.

Entitlement to service connection for a breast disorder. 

Entitlement to service connection for hearing loss. 

Entitlement to service connection for an allergic disorder.

Entitlement to service connection for an eye disorder.

Entitlement to service connection for cutis laxa.

Entitlement to service connection for right radiculopathy.

Entitlement to service connection for left radiculopathy. 

Entitlement to service connection for sleep apnea.

Entitlement to service connection for a urinary tract disorder.

Service treatment records reveal no complaint, treatment, or diagnoses pertinent to a right knee disorder, hearing loss, an allergic disorder, or sleep apnea. In August 2011, the Veteran was treated for urethritis and herpes (Record 06/19/2014 at 21).  The Veteran was treated in September 2008 for skin irritation after losing weight (Record 06/19/2014 at 22). The Veteran was treated in October 2013 for a red right eye (Record 06/19/2014 at 5). This was attributed to conjunctivitis (Record 05/22/2019 at 87). The Veteran was noted to have a history of radiculopathy in October 2013 (Record 06/19/2014 at 3). An MRI showed central canal stenosis and central disc protrusion (Record 06/19/2014 at 9). A November 4, 2013, Optometry Clinic note reveals diagnoses of refractive error and astigmatism (Record 05/22/2019 at 79). 

The Veteran was discharged from active duty on November 5, 2013. 

The report of an April 2015 VA Eye Conditions Examination reveals the sole diagnosis of bilateral kerato-conjunctivitis, now resolved. Corrected distance vision was 20/40 or better, bilaterally. Corrected near and distance vision was characterized as normal. There was no impact on the Veteran’s ability to work (Record 04/08/2015).

The report of an April 2015 VA Hearing Examination reveals diagnoses of normal hearing, bilaterally, and tinnitus. The Veteran reported that he had constant tinnitus since being injured by a rocket-propelled grenade (Record 04/08/2015). Pure tone thresholds were as follows:

			HERTZ		

	500	1000	2000	3000	4000

RIGHT	5	5	5	5	5

LEFT	10	10	10	10	10

Speech recognition was 100 percent in both ears. 

An April 2015 VA Spine examination reveals diagnoses of spinal stenosis, lumbar degenerative disc disease, lumbar degenerative joint disease, and lumbar radiculopathy. There was radiation of pain down the lateral thighs, bilaterally 35-40 percent of the time. Muscle strength in the lower extremities was full. Reflexes were normal. Sensation was normal. Testing for radiculopathy was negative. There were no neurological abnormalities found (Record 04/09/2015 at 12).

A May 2015 VA Breast Conditions Examination reveals a diagnosis of male breast enlargement related to morbid obesity (Record 05/07/2015 at 16).

A May 2015 VA Sleep Apnea Examination reveals a diagnosis of obstructive sleep apnea, diagnosed in 2015. The examiner noted that the Veteran has a clear and specific diagnosis of obstructive sleep apnea. The etiology is morbid obesity that causes the soft tissues of the upper airway to collapse during sleep. The Institute of Medicine Gulf War and Health, Volume 9, reports that there is insufficient evidence to determine whether an association exists between any respiratory condition and service in southwest Asia. It is therefore less likely than not that the veteran has obstructive sleep apnea caused by service in Southwest Asia (Record 05/07/2015 at 18).

A May 2015 VA Allergies Examination reveals a diagnosis of allergic rhinitis to cats and rabbits. The examiner opined that the disorder was less likely than not that the allergic rhinitis was related to service. The rationale was that the Veteran’s “clearly reports that this started in his childhood” (Record 05/07/2015 at 11).

A May 2015 VA Urinary Examination reveals a diagnosis of acute urethritis, resolved. The Veteran complained of penile pain in 2011. He was diagnosed with urethritis. Cultures and blood tests were done for sexually transmitted infections. When the tests were complete, they showed herpes simplex virus, type 2 or genital herpes. He has no recurrent urinary symptoms (Record 05/07/2015 at 14).

A September 2015 VA opinion states that the right knee condition is less likely as not incurred or caused by knee pain during service. The rationale was that the Veteran was not treated for a right knee injury during service (Record 09/09/2015 at 4).

A September 2016 Gulf War Examination reveals the examiner’s opinion that there were no diagnosed illnesses for which no etiology was established and there were no additional signs and/or symptoms not addressed. A right hand and finger condition, bilateral hip condition, bilateral knee condition, and left ankle condition were less likely as not caused by or related to service in southwest Asia. The rationale was that was that these conditions were caused by biomechanical forces including wear and tear and injury during active military duty service. The current diagnosed conditions are the natural progression of the condition which began in service (Record 09/09/2015).

A February 2019 examination from M. Blevins, MD states that the Veteran’s sleep apnea is both precipitated and aggravated by his service-connected PTSD and major depressive disorder. The Veteran essentially conveyed that is PTSD symptoms make him too anxious to use the CPAP mask on some nights. The examiner commented that PTSD and other psychiatric disorders are commonly associated with sleep apnea (Record 05/22/2019 at 4).

After a review of all of the evidence, the Board finds that the criteria for service connection for a breast disorder, cutis laxa, an allergic disorder, a urinary tract disorder, sleep apnea, an eye disorder and hearing loss have not been met. However, the criteria for service connection for a right knee disorder and bilateral lower extremity radiculopathy have been met. While the September 2015 VA opinion is against a relationship between a right knee disorder and service, the September 2016 opinion relates the currently diagnosed patellofemoral pain syndrome to biomechanical forces including wear and tear and injury during active military duty service. Thus, the evidence in favor of a relationship between a current right knee disability and service has attained relative equipoise with the evidence against a nexus to service. With resolution of all reasonable doubt in favor of the claim, the Board concludes that service connection for a right knee disability is warranted. 

Regarding bilateral radiculopathy, this is shown in the service treatment records to have existed in service, related to disc protrusion and stenosis. Thus, the mixed findings in the April 2015 examination, showing positive complaints of radicular symptoms, but normal test results, are unpersuasive regarding the lack of a current disability. Those findings certainly impact the rating to be assigned; however, the Veteran is shown to have a current disability during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). Accordingly, service connection for bilateral lower extremity radiculopathy is warranted. 

As shown on VA examinations in April 2015, the Veteran does not have an eye disorder or hearing loss for VA purposes. He had acute conjunctivitis in service, which resolved by the time of the April 2015 examination. His current diagnoses for the eyes are essentially refractive error. This is not a disease or injury for VA purposes. See 38 C.F.R. § 4.9. The Veteran is also shown to have acute urethritis in service, which resolved by the time of the May 2015 examination. Service connection cannot be granted, even under the Gulf War provisions, where there is no current disability. 

The claimed breast disorder and cutis laxa are attributed to known causes and are not diseases associated with Persian Gulf service. While cutis laxa is not currently diagnosed, the notations of this condition in service are attributed to pre-service weight loss and are therefore not related to service. Similarly, the breast condition has been attributed to pre-service weight loss with resultant excess skin. Therefore, this condition is not related to service. 

While the Veteran has a diagnosis of allergic rhinitis, also a known medical condition, the May 2015 VA examiner cited the Veteran’s own statement that this dates back to his childhood as the rationale for finding that the condition was not related to service. Accordingly, the evidence weighs against a relationship to service. 

Sleep apnea has been attributed to a known diagnosis and the Gulf War provisions do not apply. The Veteran’s sleep apnea did not begin in service. The Veteran’s private physician has related the condition to the Veteran’s service-connected psychiatric disability. However, the Board finds that this opinion is not as persuasive as that of the May 2015 VA examiner, which acknowledges the nature of the disorder as an obstructive respiratory disorder and which attributes the disorder to the collapse of the Veteran’s upper airway during sleep. In contrast, the private opinion does not acknowledge or discuss these factors. The private opinion also relies on the statement that PTSD and other psychiatric disorders are commonly associated with sleep apnea. An association of one disorder with another is not the equivalent of causation or aggravation. The causal mechanism or mechanism of aggravation is not discussed by Dr. Blevins. Therefore, the Board finds the rationale of Dr. Blevins to be inadequate. The Board places greater probative weight on the May 2015 VA opinion than on the opinion of Dr. Blevins. 

In sum, the Board finds that service connection is warranted for bilateral lower extremity radiculopathy associated with the service-connected low back disability, and for a right knee disability. As this represents the maximum benefit sought on appeal with respect to these claims, there is no prejudice resulting from any deficiency in the duty to notify or assist.

However, the Board finds that the claimed breast disorder, cutis laxa, hearing loss, allergic disorder, eye disorder, urinary tract disorder, and sleep apnea, are not related to service, on a direct, secondary, or presumptive basis, either by causation or aggravation. In light of these findings, the Board concludes that service connection is not warranted for these claims. 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) (West 2002); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 53-56.

Increased Ratings—Law and Regulations

Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 

Entitlement to a disability rating higher than 70 percent for PTSD. 

In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran’s psychiatric symptoms and the veteran’s capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner’s assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. 

The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. 

By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). 

The schedular criteria incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. 

Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM–5. For claims prior to that date, VA required a diagnosis that conformed with the DSM–IV–TR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 –94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)).

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. 

If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

Psychiatric disorders are to be rated on the severity, frequency, and duration their respective signs and symptoms. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). 

The current appeal arises from a claim of entitlement to service connection for an acquired psychiatric disorder that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 70 percent rating for PTSD, pursuant to Diagnostic Code 9411, effective November 6, 2013, the day following service separation. 

Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 

A 10 percent rating is warranted for PTSD if there is 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 continuous medication. 

A 30 percent rating is warranted for PTSD if there is 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, or mild memory loss (such as forgetting names, directions, recent events). 

A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating, may be assigned for 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 work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). 

A 100 percent rating contemplates 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.

During the pendency of this claim, effective August 4, 2014, the DSM–IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013) (DSM–5). In pertinent part, the DSM–5 eliminated the GAF scores used in the DSM–IV: It was recommended that the GAF be dropped from DSM–5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In order to provide a global measure of disability, the World Health Organization (WHO) Disability Assessment Schedule (WHODAS) is included, for further study, in Section III of DSM–5 (see the chapter “Assessment Measures”). The WHODAS is based on the International Classification of Functioning, Disability and Health (ICF) for use across all of medicine and health care.  Benson v. Shinseki, No. 12-3106, 2013 U.S. App. Vet. Claims LEXIS 2019, 2013 WL 6511510 (U.S. App. Vet. Cl. Dec. 13, 2013); Golden v. Shulkin, 29 Vet. App. 221 (2018) (the Board should not use Global Assessment of Functioning (GAF) scores at all when assigning a psychiatric rating in cases where the DSM-5 applies).

A March 2015 Mental Health Examination reveals the Veteran’s report of nightmares several times per week in that he would wake up startled, anxious and panicked, related to his combat experiences. He experienced intrusive thoughts of combat every day. He experienced brief dissociative episodes everyday where he would find himself “spacing out.” The Veteran reported panic attacks every day, even becoming anxious if his phone rings and he doesn’t know the number. He avoided talking about combat, avoided crowds, avoided going out shopping when there were a number of people around. He believed the world was a dangerous place. He reported emotional detachment towards others. He experienced a persistent negative emotional state. He reported difficulty falling asleep, taking hours to fall asleep. He would then sleep for 6 hours per night, often waking up 2-4 times per night. He reported reckless behavior in that he would drive too fast. He recently was given a speeding ticket. He reported constantly scanning people when out in public, feeling very alert in public. He experienced irritability daily, including verbal outbursts toward his girlfriend. Given his level of irritability, he had difficulty responding to stressful situations. He reported concentration and memory difficulties. He had an exaggerated startle response to loud noises. He reported peripheral hallucinations related to PTSD, and would see shadows in the periphery of his vision. The Veteran reported symptoms associated with major depressive disorder, including decreased interest, decreased motivation, and decreased energy. He reported helplessness, hopelessness, and worthlessness. He reported current suicidal ideation, but had no plan, and last felt suicidal yesterday. He was able to contract for safety today. He reported a history of suicidal ideation. He denied any suicide attempts. The Veteran was twice divorced. For social activities he enjoyed “very little.” He stated he has a great deal of anxiety, doesn’t like to answer the phone, doesn’t like to be around people. He reported being unemployed. He stated he struggled with his faith, given the carnage he saw in Iraq, and tends to blame God. The Veteran denied any manic-like symptoms such as impulsivity, grandiosity, or flight of ideas or pressure with decreased need for sleep. He denied any overt psychotic symptoms such as auditory/visual hallucinations or paranoia. He denied any obsessive or ritualistic behavior. He denied any inappropriate behavior. Symptoms included a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. 

On mental status examination there was no impairment of thought processes or communication. There were no delusions or hallucinations, or reported history of delusions or hallucinations. His eye contact was good and his behavior appropriate throughout the session. He was articulate and talkative. He was casually dressed, and he was courteous throughout the interview. His mood and affect were in the anxious range of function. There were recent suicidal thoughts, but no plans or attempts. There were no homicidal thoughts. He had the ability to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, place, and time. Testing indicated cognitive functioning in the normal range. His rate and flow of speech was within normal limits and logical, and was easily elicited. There were no loose associations or flight of ideas noted. His capacity for insight was within normal range of function. He appeared to present a reliable and accurate description of his symptoms. The examiner opined that the Veteran’s symptoms are productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (Record 03/14/2015 at 7).

The Veteran submitted a private evaluation in February 2019, which includes the opinion that the Veteran’s service-connected psychiatric disorder is productive of symptoms including depression, anxiety, suspiciousness, panic attacks, mild memory loss, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation or mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability perform activities of daily life, and results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (Record 05/22/2019 at 22).  

After a review of all of the evidence, the Board finds that the criteria for a total rating for the service-connected psychiatric disability have not been met. The medical opinion evidence from VA sources and from the Veteran’s private provider does not suggest that the Veteran’s service-connected psychiatric disability has resulted in total occupational and social impairment. The Veteran, while certainly impaired due to his psychiatric disability, still retains significant functioning. He has consistently been found to be oriented and able to engage and communicate. In short, the gross impairment of behavior resulting in severe disorientation of the individual which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time.

The Board finds that the service-connected acquired psychiatric disability has not been manifested by total occupational and social impairment. In light of this finding of fact, the Board concludes that a disability rating in excess of 70 percent for the service-connected acquired psychiatric disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Entitlement to a disability rating higher than 10 percent for a low back disability. 

The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Diagnostic codes 5235-5243 are included. 

Under the General Rating Formula for diseases and injuries of the thoracolumbar spine, a rating of 100 percent requires unfavorable ankylosis of the entire spine.

A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 

A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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.

A rating of 10 percent requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

For VA compensation purposes, normal forward flexion of the 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. Note (2): (See also Plate V.) 

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (5). 

Thus, the current evaluation contemplates pain on motion and flexion greater than 60 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 60 degrees or less due to pain, weakness, fatigue, or incoordination. 

The current appeal arises from a claim of entitlement to service connection for a thoracolumbar spine disorder that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 10 percent rating for a thoracolumbar spine disability, pursuant to Diagnostic Code 5237, effective November 6, 2013, the day following service separation.

An April 2015 VA Spine examination reveals diagnoses of spinal stenosis, lumbar degenerative disc disease, lumbar degenerative joint disease, and lumbar radiculopathy. Currently, the Veteran has symptoms of low back pain. There is radiation of pain down the lateral thighs, bilaterally 35-40 percent of the time. There is no bowel/bladder dysfunction. Flares were reported. Once or twice per week he cannot move and cannot get dressed. He cannot put on shoes or reach his feet. There are no incapacitating episodes. Forward flexion was from 0 to 80 degrees; extension was from 0 to 30 degrees; lateral flexion was from 0 to 20 degrees, bilaterally; and lateral rotation was from 0 to 30 degrees, bilaterally. Pain was noted with flexion, not with other excursions, and not with weight bearing. There was no additional loss of function after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability during flares or with repeated use over a period of time. No guarding or muscle spasms were found. Muscle strength in the lower extremities was full. Reflexes were normal. Sensation was normal. Testing for radiculopathy was negative. There were no neurological abnormalities found. Scars were well healed. Regarding the impact of the disability on work, the Veteran would have difficulty performing an active job with walking, bending, lifting or standing. He would have difficulty with jobs requiring repetitive movements of the spine such as push/pull, bend/twist due to exacerbation of his pain. The Veteran would be able to perform a sedentary job with the following limitations--he would require an ergonomically correct workspace and chair and would require breaks for periods of sitting after 15 minutes.  He would have difficulty lifting objects greater than 5-10 pounds over his head due to increased back pain (Record 04/09/2015 at 12).

Thus, the current evaluation contemplates pain on motion and flexion greater than 60 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 60 degrees or less due to pain, weakness, fatigue, or incoordination.

After a review of all of the evidence, the Board finds that the criteria for a higher rating have not been met. Testing of range of motion has been conducted, and while the Veteran has painful motion of the thoracolumbar spine, he is still able to attain normal extension, 80 degrees of forward flexion, and combined range of motion exceeding 120 degrees. Accordingly, a higher rating is not warranted. 

The presence of pain, as described by the Veteran, is certainly a component of his spine disability; however, all compensable levels under the rating schedule are assigned with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. Here, the evidence demonstrates no additional functional impairment that would warrant a higher rating than currently assigned. Here, the evidence demonstrates no additional functional impairment that would warrant a higher rating than currently assigned.

Moreover, the evidence does not substantiate that the Veteran has been prescribed bedrest by a physician due to intervertebral disc syndrome. Accordingly, application of the Schedule for Rating Intervertebral Disc Syndrome is not appropriate. While service connection has been granted for lower extremity radiculopathy, the rating for those conditions is not on appeal. The Veteran has no other neurological abnormalities associated with the thoracolumbar spine disability. 

The Board finds that the criteria for a rating higher than 10 percent for the service-connected thoracolumbar spine disability have not been met. In light of this finding of fact, the Board concludes that a disability rating in excess of 10 percent for the service-connected thoracolumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 10 percent for tinnitus. 

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit held that Diagnostic Code 6260 limits a veteran to a single 10 percent disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no schedular basis upon which to award more than a single, 10 percent rating for tinnitus, the Veteran’s appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for traumatic brain injury. 

The current appeal arises from a claim of entitlement to service connection for a TBI that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating for a thoracolumbar spine disability, pursuant to Diagnostic Code 8045, effective November 6, 2013, the day following service separation. 

The table titled ‘Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified’ contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled ‘total.’  However, not every facet has every level of severity.  The Consciousness facet, for example, does not provide for an impairment level other than ‘total,’ since any level of impaired consciousness would be totally disabling.  

A 100-percent evaluation is to be assigned if ‘total’ is the level of evaluation for one or more facets.  If no facet is evaluated as ‘total,’ the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

A March 2015 VA TBI Examination reveals no diagnosis of TBI. The Veteran’s medical record supports a diagnosis of anoxic/hypoxic brain injury. There were no complaints of impairment of memory, attention, concentration, or executive functions. Judgement was normal. Social interaction was routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Visual spatial orientation was normal. There were no neurobehavioral effects. There were no mental or cognitive residuals attributable to a TBI. Symptoms of insomnia, memory deficits, and behavioral effects were attributed to the service-connected psychiatric disability. There were no cognitive or mental residuals from the “possible” TBI. There was no impact of the TBI on the Veteran’s ability to work (Record 03/14/2015 at 1).

After a review of all of the evidence, the Board finds that the criteria for a compensable rating for the Veteran’s TBI have not been met. In essence, the compensable impairments associated with the Veteran’s TBI, such as headaches, tinnitus, perceived cognitive impairment, and psychiatric impairment, have been compensated separately, as directed under the rating schedule. There are no additional compensable residuals of the TBI which have not already been compensated. The Board acknowledges that the Veteran reported on his initial TBI evaluation on August 20, 2014, that he had visual and auditory sensitivities (Record 05/13/2015 at 183); however, his vision and hearing were subsequently assessed. The results of auditory testing indicate normal hearing. The results of visual testing indicate only refractive error. As noted above, this is not considered a disease or injury for VA purposes.

As directed under Diagnostic Code 8045, the Board has also considered the need for special monthly compensation (SMC) for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.  However, the Veteran has not asserted, and the evidence does not demonstrate, that he is housebound, in need of the regular aid and attendance of another, or that he has lost the use of an extremity or combination of extremities so as to warrant assignment of SMC. 

The Board finds that the service-connected TBI has been asymptomatic with the exception of symptoms that are already separately rated. In light of this finding of fact, the Board concludes that a disability rating in excess of 0 percent for the service-connected TBI is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for headaches. 

The current appeal arises from a claim of entitlement to service connection for headaches that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating for headaches, pursuant to Diagnostic Code 8100, effective November 6, 2013, the day following service separation.

Under Diagnostic Code 8100, headaches are assigned a maximum rating of 50 percent with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A rating of 30 percent is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. A rating of 30 percent is assigned with characteristic prostrating attacks averaging one in 2 months over last several months. A rating of 0 percent is assigned with less frequent attacks.

An April 2015 VA Headaches examination reveals headaches with frequency of 2-3 times per week, lasting 1-3 hours. Associated symptoms include light sensitivity and noise sensitivity. The headaches were not prostrating (Record 04/09/2015 at 9).

A February 2019 examination from M. Blevins, MD states that the March 2015 examination states he has approximately 3 headaches per week lasting 1-3 hours which require him to “sit” because laying down causes him to feel unbalanced. He noted multiple associated symptoms. Symptoms included constant head pain, pulsating or throbbing head pain, pain on both sides of the head, worsening pain with physical activities, nausea, vomiting, and sensitivity to light and sound. The Veteran has migraines more frequently than once per month. Two to three times per week he must lay down or recline in a dark quite room for one to three hours due to headache pain and associated symptoms. His symptoms would lend to frequent, prolonged unscheduled breaks and difficulty maintaining focus for even simple repetitive tasks. The examiner opined that the Veteran experiences very frequent prostrating and prolonged attacks of migraine headache (Record 05/22/2019).

After a review of all of the evidence, the Board finds that the criteria for a rating of 50 percent for headaches, but not higher, have been met. The February 2019 opinion of Dr. Blevins is persuasive evidence that the Veteran’s headaches are prostrating and that they significantly impair his ability to function in the workplace. The Board finds that the symptomatology demonstrated would likely result in severe economic inadaptability, and therefore, the criteria for a rating of 50 percent are more nearly approximated than are the criteria for the currently assigned rating of 0 percent. 38 C.F.R. § 4.7. 

However, the Board also finds that no rating higher than 50 percent is warranted. The rating schedule for headaches does not include any rating higher than 50 percent. Thus, 50 percent is the maximum rating contemplated for the symptomatology demonstrated here.

The Board finds that the service-connected headaches have been manifested by very frequent prostrating and prolonged attacks of migraine headache. In light of this finding of fact, the Board concludes that a disability rating of 50 percent for the service-connected headaches is warranted. In reaching the conclusion that no higher rating is warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for hypertension. 

The current appeal arises from a claim of entitlement to service connection for hypertension that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating for hypertension, pursuant to Diagnostic Code 7101, effective November 6, 2013, the day following service separation.

Under Diagnostic Code 7101, hypertensive vascular disease (hypertension and isolated systolic hypertension) is assigned a rating of 60 percent with diastolic pressure predominantly 130 or more. A rating of 40 percent is assigned with diastolic pressure predominantly 120 or more. A rating of 20 percent is assigned with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A rating of 10 percent is assigned with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.

NOTE (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.	

NOTE (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation.	

NOTE (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease.

The report of a May 2015 VA examination reveals blood pressure readings of 146/100, 132/94, and 142/90. There was no impact of the condition on his ability to work (Record 05/07/2015 at 2).

VA outpatient treatment records reveal the following blood pressure readings: 114/87 (7/24/14), 137/84 (7/24/14), 139/91 (7/24/14), 153/80 (10/24/14), 168/101 (12/5/14), 124/80 (4/29/16). 

After a review of all of the evidence, the Board finds that the criteria for an increased rating for hypertension have not been met. Based on the evidence in this case, the Veteran has only one recorded systolic blood pressure reading of 160 or more. Therefore, 160 is not the predominant systolic reading. There is also only one diastolic reading of 100 or more. Therefore, this is not the predominant reading. As Diagnostic Code 7101 provides successive criteria, a finding that a 10 percent rating is not warranted also precludes any higher ratings. 

The Board finds that the Veteran’s hypertension has not been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. In light of these findings of fact, the Board concludes that a disability rating in excess of 0 percent for the service-connected hypertension is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for a scar on the back. 

Entitlement to a disability rating higher than 0 percent for tinea pedis. 

Entitlement to a disability rating higher than 0 percent for a facial scar. 

The current appeal arises from a claim of entitlement to service connection for a facial scar, a scar on the back, and various fungal infections of the skin that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned initial 0 percent ratings for a facial scar, scar on the back, and tinea pedis, pursuant to Diagnostic Codes 7800-7806, effective November 6, 2013, the day following service separation.

The rating schedule for disorders of the skin has been amended since the Veteran filed his claim. While the rating schedule in effect at any time during the period on appeal may be applied for the period pertinent to its enactment. No amendment may be applied prior to its effective date. Regarding earlier versions of the rating criteria, these may be applied subsequent to the effective of revised criteria if they are more favorable to the claim.

Under Diagnostic Code 7800, burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck are rated 80 percent with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. A rating of 50 percent is applied with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A rating of 30 percent requires visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A rating of 10 percent requires one characteristic of disfigurement. 

Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under 4.118, are: 	

(1)	Scar 5 or more inches (13 or more cm.) in length. 	

(2)	Scar at least one-quarter inch (0.6 cm.) wide at widest part. 	

(3)	Surface contour of scar elevated or depressed on palpation. 	

(4)	Scar adherent to underlying tissue. 	

(5)	Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). 	

(6)	Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). 	

(7)	Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). 	

(8)	Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 	

Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. 	

Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. 	

Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. 	

Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation.	

Under Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage are assigned a rating of 40 percent if covering an area or areas of 144 square inches (929 sq. cm.) or greater. A rating of 30 percent requires area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A rating of 20 percent requires area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A rating of 10 percent requires area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).

Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk	

Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code	

Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent if covering an area or areas of 144 square inches (929 sq. cm.) or greater. 

Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk	

Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code	

Under Diagnostic Code 7804, scars that are unstable or painful are assigned a rating of 30 percent if there are five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful.

Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.	

Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars 	

Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 	

Under the General Rating Formula For The Skin For Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, a rating of 60 percent is assigned with at least one of the following:

Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or	 constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 

A rating of 30 percent requires at least one of the following: 

Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period	

A rating of 10 percent requires at least one of the following:

Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or	

Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period.	

A rating of 0 percent is assigned with no more than topical therapy required over the past 12-month period and at least one of the following:

Characteristic lesions involving less than 5 percent of the entire body affected; or	

Characteristic lesions involving less than 5 percent of exposed areas affected	

An April 2015 VA Spine Examination reveals a surgical scar on the back which was well healed (Record 04/09/2015 at 23). 

A May 2015 VA Scars Examination revealed a non-painful scar of the left temple. The scar was not unstable or have frequent loss of covering of skin. The scar measured 1.8 by 0.1 centimeters. There was no elevation or depression. There was no adherence to underlying tissue. There was no abnormal pigmentation. There was no distortion of facial features. There was no limitation of function. There was no impact on the ability to work (Record 05/07/2015 at 9).

A May 2015 Skin Diseases Examination reveals current diagnoses of genital herpes, tinea pedis and intertrigo. The Veteran had a faint scar of the face from excision of a congenital facial nevus. There were no benign or malignant skin neoplasms. There were no systemic manifestations due to any skin diseases, such as fever, weight loss or hypoproteinemia. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The infections covered less than 5 percent of total body area and no exposed areas. For his tinea pedis, there are mild dry and reddened areas on the plantar surfaces of the bilateral feet only, for 3% of total body surface. No intertrigo was found, for 0% of both total and exposed skin area. For his congenital nevus, it had been removed so there was 0% of both total and exposed skin area. There was no impact of any of the conditions on the Veteran’s ability to work (Record 05/07/2015 at 5).

After a review of all of the evidence, the Board finds that the criteria for a compensable rating have not been met regarding the scar on the back, tinea pedis, or facial scar. The VA examinations reveal that there are no characteristics of disfigurement regarding the facial scar, which is not painful. The Veteran’s surgical scar of the back is also not painful and is well healed. The Veteran’s tinea pedis covers less than 5 percent of total body areas and 0 percent of exposed areas. Based on this evidence, the Board finds that a compensable rating is not warranted for either scar or for the service-connected tinea pedis. 

The Board finds that the service-connected scar of the back, facial scar, and tinea pedis are not compensably disabling under the rating schedule for disabilities of the skin. In light of these findings of fact, the Board concludes that a disability rating in excess of 0 percent for any of the service-connected skin disabilities is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for stuttering. 

The current appeal arises from a claim of entitlement to service connection for stuttering that was received at VA on June 19, 2014. In the May 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating for intermittent stuttering, pursuant to Diagnostic Code 6515, effective November 6, 2013, the day following service separation. In the September 2015 rating decision, the diagnostic code was changed to Diagnostic Code 8405-8407; however, a noncompensable rating was retained. 

Under Diagnostic Code 8407, paralysis of the facial nerve may be assigned a rating of 30 percent if complete; a rating of 20 percent if incomplete but severe; and a rating of 10 percent if incomplete but moderate. 38 C.F.R. § 4.124a, Diagnostic Code 8407.

An April 2015 VA Gulf War examination reveals onset of speech difficulties after spine surgery. He reported stuttering, where he has difficulty initiating speech. He may repeat the beginnings of words. There are pauses in the speech, mid-sentence. Sometimes, he thinks of a word, but can’t say it for several seconds, then the correct word comes out.  There may be pauses several times in a particular sentence. He has an anxiety issue where he can’t answer the phone and has difficulty with some situations with crowds.  This makes the stuttering symptoms worse.  On one occasion, he was pulled over by a police man and stuttering symptoms were severe and he had to just let them “run their course.” When others speak to him, he can understand them.  He understands the TV and understands if someone is reading to him. He can read and write. He has no neologisms, dysarthria, or dysphasia. No associated facial weakness or sensory changes were noted. The Veteran’s stuttering is intermittent, does not represent aphasia, and does not limit his ability to communicate with others (Record 04/09/2015).

After a review of all of the evidence, the Board finds that the criteria for a compensable rating for the service-connected stuttering have not been met. Essentially, the Veteran’s stutter is an intermittent condition, which is brought on by stressful circumstances. This is confirmed by the results of a November 10, 2014, Neuropsychological Assessment, which noted that the Veteran became somewhat dysfluent when describing his history, which improved as he became more at ease (Record 05/13/2015 at 97). The Board finds that the Veteran’s anxiety and related issues are fully compensated by the 70 percent rating for his psychiatric disability, which includes symptoms of speech impairment, and any additional rating for the results of anxiety would constitute pyramiding. The Board finds particularly persuasive the finding of the April 2015 VA examiner that the Veteran’s stuttering does not limit his ability to communicate with others. In other words, there is no true functional impairment resulting from the condition.

The Board finds that the service-connected stuttering is not compensably disabling under the VA rating schedule. In light of this finding of fact, the Board concludes that a disability rating in excess of 0 percent for the service-connected stuttering is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for a right finger disability. 

The current appeal arises from a claim of entitlement to service connection for a right index finger disorder that was received at VA on July 30, 2014. In the September 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating, pursuant to Diagnostic Code 5229, effective November 6, 2013, the day following service separation.

Under Diagnostic Code 5229, index or long finger limitation of motion is assigned a maximum rating of 10 percent with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A rating of 0 degrees is for assignment with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. 

The report of a September 2015 VA Hand Examination reveals subungual hematoma right index finger, resolved, and right extensor tendonitis. No flares or functional loss were reported. Ranges of motion for the fingers were all normal. There was no additional functional loss or range of motion after three repetitions. There was no gap between the pad of the thumb and the fingers or between the fingers and the proximal transverse crease of the hand. There was no evidence of pain on use. The examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The reason was there is no conceptual or empiric basis for making such a determination without directly observing function under these conditions. There was no impact of the conditions on the Veteran’s ability to work (Record 09/09/2015).

After a review of all of the evidence, the Board finds that the criteria for a compensable rating have not been met. The September 2015 VA examination indicates that the condition is not currently causing impairment, does not limit his range of motion, and does not impact the Veteran’s ability to work. Accordingly, a 0 percent rating under Diagnostic Code 5229 is appropriate. 

The Board finds that the service-connected right hand finger disability is not compensably disabling. In light of this finding of fact, the Board concludes that a disability rating in excess of 0 percent for the service-connected disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 0 percent for a left ankle disability. 

The current appeal arises from a claim of entitlement to service connection for a left ankle disorder that was received at VA on July 30, 2014. In the September 2015 rating decision, the RO granted service connection and assigned an initial 0 percent rating for a left ankle disorder, pursuant to Diagnostic Code 5271, effective November 6, 2013, the day following service separation.

Under Diagnostic Code 5271, ankle limited motion is assigned a rating of 20 percent if marked; and, a rating of 10 percent if moderate. Higher ratings are provided for ankylosis, which is neither alleged nor shown here. 

A September 2015 VA examination reveals a left lateral collateral ligament sprain. The Veteran reported no flares, but complained that his ankle hurts if he stands too long. Range of motion was normal, from 0 to 20 degrees dorsiflexion to 0 to 45 degrees plantar flexion. There was no evidence of pain with weight bearing. There was no additional loss of function or range of motion after three repetitions. The examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The reason was there is no conceptual or empiric basis for making such a determination without directly observing function under these conditions. Muscle strength was full, with no atrophy. There was no instability. The examiner opined that the Veteran cannot perform physical labor, but can perform sedentary work in an office setting such as answering phones, filing, computer work, with appropriate breaks every 20-30 minutes (Record 09/09/2015).

After a review of all of the evidence, the Board finds that the criteria for a rating of 10 percent for the left ankle disability have been met. 

The Veteran has provided competent evidence of painful motion. The September 2015 VA examiner has confirmed that the Veteran would not be able to perform physical labor due to his left ankle disability. Accordingly, at least the minimum compensable rating is warranted for painful motion which is not compensable under the rating schedule. 38 C.F.R. § 4.59. However, as there is not marked limitation of motion of the left ankle, the Board concludes that no higher rating is warranted. 

The Board finds that the service-connected left ankle disability is manifested by painful motion. In light of this finding of fact, the Board concludes that a disability rating of 10 percent, but not higher, for the service-connected left ankle disability is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, to the extent of any rating higher than 10 percent, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 10 percent for a left knee disability. 

The current appeal arises from a claim of entitlement to service connection for a left knee disorder that was received at VA on July 30, 2014. In the September 2015 rating decision, the RO granted service connection and assigned an initial 10 percent rating for a left knee disorder, pursuant to Diagnostic Code 5260, effective November 6, 2013, the day following service separation.

Ratings for limitation of knee motion are addressed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 addresses limitation of flexion of the knee. Under that code, a 30 percent rating is for application were flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Diagnostic Code 5261 addresses limitation of extension of the knee. Under that code, a 50 percent rating is for application where extension is limited to 45 degrees; a 40 percent rating is for application where extension is limited to 30 degrees; a 30 percent rating is for application where extension is limited to 20 degrees; a 20 percent rating is for application where extension is limited to 15 degrees; a 10 percent rating is for application where extension is limited to 10 degrees; a 0 percent rating is for application where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Diagnostic Code 5256 governs ankylosis (complete bony fixation) of the knee, which is neither asserted nor shown here with respect to either knee. 

Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. Under that code, a 30 percent rating is for application where subluxation or lateral instability is severe. A 20 percent rating is for application where subluxation or lateral instability is moderate. A 10 percent rating is for application where subluxation or lateral instability is slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. 

The report of a September 2015 VA Knee examination reveals diagnoses of bilateral patellofemoral pain syndrome and left degenerative arthritis. Left knee range of motion was from 0 to 120 degrees. Pain was reported on flexion and extension. There was no evidence of pain with weight bearing. There was no additional functional loss or range of motion after three repetitions. The examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limit his functional ability with repeated use over a period of time. The reason was there is no conceptual or empiric basis for making such a determination without directly observing function under these conditions. Muscle strength was full, with no atrophy. There was no history of subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. There was no history of a meniscal condition. There was no impact of the condition on the Veteran’s ability to work (Record 09/09/2015).

After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 10 percent for the service-connected left knee disability have not been met. 

Based on the findings in September 2015, the Veteran’s left knee is appropriately rated under the regulations regarding range of motion and painful motion. There is also no lateral instability or meniscal pathology to support any separate ratings. 

The Board finds that the service-connected left knee disability has been manifested by painful motion which is not impaired to a compensable degree. In light of these findings of fact, the Board concludes that a disability rating in excess of 10 percent for the service-connected left knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

Entitlement to a disability rating higher than 10 percent for a left hip disability. 

Entitlement to a disability rating higher than 10 percent for a right hip disability. 

The current appeal arises from a claim of entitlement to service connection for a left hip disorder that was received at VA on July 30, 2014. In the September 2015 rating decision, the RO granted service connection and assigned an initial 10 percent rating for a left hip disorder, pursuant to Diagnostic Code 5251, effective November 6, 2013, the day following service separation.

The current appeal arises from a claim of entitlement to service connection for a right hip disorder that was received at VA on July 30, 2014. In the September 2015 rating decision, the RO granted service connection and assigned an initial 10 percent rating for a right hip disorder, pursuant to Diagnostic Code 5251, effective November 6, 2013, the day following service separation.

Under Diagnostic Code 5250, hip ankylosis is assigned a rating of 90 percent if unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated. A rating of 70 percent is assigned if the ankylosis is intermediated. A rating of 60 percent requires ankylosis that is favorable, in flexion at an angle between 20 and 40, and slight adduction or abduction. 

Under Diagnostic Code 5251, thigh limitation of extension is assigned a rating of 10 percent with extension limited to 5 degrees. 

Under Diagnostic Code 5252, thigh, limitation of flexion is assigned a rating of 40 percent with flexion limited to 10 degrees. A rating of 30 percent requires flexion limited to 20	 degrees. A rating of 20 percent requires flexion limited to 30 degrees. A rating of 10 percent requires flexion limited to 45 degrees. 

Under Diagnostic Code 5253, thigh impairment is assigned a rating of 20 percent for limitation of abduction if motion is lost beyond 10 degrees. A rating of 10 percent requires limitation of adduction of such that he cannot cross legs; or, for limitation of rotation where he cannot toe-out more than 15 degrees. 

Under Diagnostic Code 5254, hip flail joint is assigned a rating of 80 percent. 

Under Diagnostic Code 5255, femur impairment  provides a rating of 80 percent for fracture of shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture. A rating of 60 percent requires nonunion, without loose motion, weightbearing preserved with aid of brace; or, fracture of surgical neck of, with false joint. For malunion, a rating of 30 percent requires marked knee or hip disability. A rating of 20 percent requires moderate knee or hip disability. A rating of 10 percent requires slight knee or hip disability.

The report of a September 2015 VA Hip and Thigh Examination reveals diagnoses of bilateral femoral acetabular impingement syndrome. Bilateral range of motion was from 0 to 70 degrees flexion, 0 to 20 degrees extension, 0 to 35 degrees abduction, and 0 6o 20 degrees adduction. External rotation was from 0 to 50 degrees and internal rotation was from 0 to 30 degrees. Pain was reported on with motion. There was no evidence of pain with weight bearing. There was no additional functional loss or range of motion after three repetitions. The examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The reason was there is no conceptual or empiric basis for making such a determination without directly observing function under these conditions. Muscle strength was full, with no atrophy. The Veteran cannot stand for more than 10 minutes due to hip pain (Record 09/09/2015).

After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 10 percent have not been met for either hip. 

Based on the findings in September 2015, the Veteran’s hips are appropriately rated under the regulations regarding range of motion and painful motion. There is also no additional hip pathology to support any separate ratings.

The Board finds that the service-connected bilateral hip disabilities have been manifested by painful motion, which is not impaired to a compensable degree. In light of these findings of fact, the Board concludes that a disability rating in excess of 10 percent for either service-connected hip disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

TDIU—Law and Regulations

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).

A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent for more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.

Entitlement to TDIU. 

In the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) submitted in June 2014, the Veteran reported training as a radiology specialist. He reported that his only work experience was in the military (Record 06/19/2014). 

A February 2019 opinion from Dr. Blevins provides: in the course of an eight-hour workday, the Veteran’s ability to stand, walk, sit, and/or stoop would be limited to less than two hours. He would be only able to lift or carry less than ten pounds intermittently. On average, the Veteran would be required to leave early three or more days per month, would need more than one additional break per day aside from normally scheduled morning, lunch and afternoon breaks, and for more than three days per month, he would not stay focused for at least seven hours of an eight-hour workday. Based on the Veteran’s claims file, objective evidence and consultation with the Veteran, he is unable to maintain substantially gainful employment as a result of the combined service-connected disabilities (Record 05/22/2019 at 8).

An April 24, 2019, vocational opinion states that the Veteran is totally occupationally disabled due to his psychiatric disorder, TBI, headaches, hypertension, stuttering, right index finger disorder, tinnitus, lumbar disorders, right hip disorders, left knee, ankle, and hip disorders, and skin disorders (Record 05/22/2019).

After a review of all of the evidence, the Board finds that the criteria for TDIU have been met. Service connection is in effect for a psychiatric disability, rated at 70 percent; headaches, now rated at 50 percent; a low back disability, rated at 10 percent; a left knee disability, rated at 10 percent; a left ankle disability, now rated at 10 percent; tinnitus, rated at 10 percent, a right hip disability, rated at 10 percent; and a left hip disability, rated at 10 percent. The Veteran also has multiple noncompensable disabilities and several disabilities which have been granted herein, but not yet rated by the RO. The combined disability rating is 90 percent. Accordingly, the schedular criteria for TDIU have been met. 

The June 2015 Social Security Disability decision reveals that the Veteran has severe disabilities, including his psychiatric disability and low back disabilities. The decision finds that no jobs that exist in significant numbers in the national economy can be performed by the Veteran. The decision finds him disabled as of November 6, 2013 (Record 05/22/2019 at 885). 

The April 2019 vocational opinion and the February 2019 opinion of Dr. Blevins find that the Veteran is unemployable and attribute his inability to secure or follow a substantially gainful occupation to his service-connected disabilities.  

While there is evidence that contradicts some of these findings, it is not as persuasive. Notably, the September 2015 ankle examiner found that the Veteran could perform sedentary employment, but not physical employment. However, the term sedentary was not defined and is not included in the regulations governing TDIU. Withers v. Wilkie, 30 Vet. App. 139 (2018).

In sum, the Board finds that the Veteran’s combined service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. In light of this finding, the Board concludes that TDIU is warranted for the entire period. As this represents the maximum benefit sought on appeal, there is no prejudice resulting from any deficiency in the duty to notify or assist.

Effective Dates—Law and Regulations

The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). 

The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1).

This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. 

For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for PTSD. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a low back disability. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for tinnitus. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for traumatic brain injury. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for headaches. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a scar on the back. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for hypertension. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for tinea pedis. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a facial scar. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for stuttering. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a right finger disability. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a left ankle disability. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a left knee disability. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a left hip disability. 

Entitlement to an effective date earlier than November 6, 2013, for the grant of service connection for a right hip disability. 

Before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a “veteran,” or (2) “veteran” status for the person upon whose military service the claim for VA benefits is predicated. Laruan, 11 Vet. App. at  84 (citing Aquilar v. Derwinski, 2 Vet. App. 21, 23 (1991).

The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2) (West 2014).

Thus, to be considered a veteran and to be entitled to VA benefits, such as service connection, a prerequisite is that the individual has been “discharged” from service. This is why the law pertaining to effective dates establish the day following the date of discharge or release. 38 U.S.C. § 5110(b)(1). 

In this case, there is no dispute as to the date of discharge. It is November 5, 2013. Each of the disabilities at issue here was granted with an effective date of November 6, 2013, the date following discharge. The first date to which “veteran” status and entitlement to VA benefits attaches. 

As there is no dispute as to any pertinent fact regarding these claims, they must be denied on the basis that they lack legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	L. Cramp

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.