Citation Nr: 20045040
Decision Date: 07/07/20	Archive Date: 07/07/20

DOCKET NO. 18-08 904
DATE: July 7, 2020

ORDER

Entitlement to an effective date prior to June 9, 2005, for the grant of service connection for lumbosacral strain status post decompressive laminectomy (claimed as back condition) is denied. 

Entitlement to an effective date prior to December 1, 2016 for a separate noncompensable rating for right hip degenerative joint disease (DJD) (limitation of extension) under Diagnostic Code 5010-5251 is denied.

Entitlement to an effective date prior to December 1, 2016 for a separate noncompensable rating right hip DJD (limitation of flexion) under Diagnostic Code 5010-5252 is denied.

Entitlement to an effective date prior to December 1, 2016 for a separate noncompensable rating for left hip DJD (limitation of extension) under Diagnostic Code 5003-5251 is denied.

Entitlement to an effective date prior to December 1, 2016 for a separate noncompensable rating for left hip DJD (impairment of thigh) under Diagnostic Code 5003-5253 is denied.

Entitlement to an effective date prior to December 1, 2016 for the grant of the 20 percent disability rating for right sided sciatica under Diagnostic Code 8520 is denied. 

Entitlement to a disability rating in excess of 20 percent for right sided sciatica is denied. 

Entitlement to a disability rating in excess of 20 percent for left sided sciatica is denied. 

Entitlement to a disability rating in excess of 20 percent for right hip DJD (impairment of thigh) under Diagnostic Code 5010-5253 is denied. 

Entitlement to a compensable disability rating for right hip DJD (limitation of extension) under Diagnostic Code 5010-5251 is denied. 

Entitlement to a compensable disability rating for right hip DJD (limitation of flexion) under Diagnostic Code 5010-5252 is denied. 

Entitlement to a disability rating in excess of 10 percent for left hip DJD (limitation of flexion) under Diagnostic Code 5252-5003 is denied. 

Entitlement to a compensable disability rating for left hip DJD (limitation of extension) under Diagnostic Code 5003-5251 is denied. 

Entitlement to a compensable disability rating left hip DJD (impairment of thigh) under Diagnostic Code 5003-5253 is denied. 

Entitlement to a disability rating in excess of 10 percent for osteomyelitis, right femur is denied. 

Entitlement to a disability rating in excess of 10 percent for muscle hernia, right thigh is denied. 

Entitlement to a disability rating in excess of 10 percent for fracture, midshaft of right femur, healed postoperative, with shortening in the right lower extremity is denied. 

Entitlement to a compensable disability rating for scar of the right thigh is denied. 

Entitlement to a compensable disability rating for a left testicle injury is denied. 

Entitlement to a 40 percent disability rating, but no higher, for the period on appeal prior to October 8, 2019, for lumbosacral strain status post decompressive laminectomy (back disability) is granted.  

Entitlement to a disability rating in excess of 40 percent for the period on appeal beginning October 8, 2019, for lumbosacral strain status post decompressive laminectomy (back disability) is denied.  

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 8, 2019 is remanded.

FINDINGS OF FACT

1. The Veteran’s claim for service connection for back disability was initially denied in a May 1985 rating decision. The Veteran did not appeal the May 1985 rating decision and it became final.  There was no pending claim of entitlement to service connection for insomnia disorder, either formal or informal, prior to June 9, 2005.

2.  VA received an increased rating claim for left hip disability on December 1, 2016.  Prior to December 1, 2016, there was no pending left hip increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for a separate noncompensable rating for left hip DJD (limitation of extension) under Diagnostic Code 5003-5251 prior to December 1, 2016. 

3. VA received an increased rating claim for left hip disability on December 1, 2016.  Prior to December 1, 2016, there was no pending left hip increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for a separate noncompensable rating for left hip DJD (impairment of thigh) under Diagnostic Code 5003-5253 prior to December 1, 2016. 

4. VA received an increased rating claim for right hip disability on December 1, 2016.  Prior to December 1, 2016, there was no pending right hip increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for a separate noncompensable rating for right hip DJD (limitation of extension) under Diagnostic Code 5010-5251 prior to December 1, 2016. 

5. VA received an increased rating claim for right hip disability on December 1, 2016.  Prior to December 1, 2016, there was no pending right hip increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for a separate noncompensable rating for right hip DJD (limitation of flexion) under Diagnostic Code 5010-5252 prior to December 1, 2016. 

6. VA received an increased rating claim for right side sciatica disability on December 1, 2016.  Prior to December 1, 2016, there was no pending right side sciatica increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for a 20 percent rating for right side sciatica prior to December 1, 2016. 

7.  The Veteran’s right side sciatica has not been manifested by moderately severe or severe incomplete paralysis or impairment during the period on appeal.

8. The Veteran’s left side sciatica has not been manifested by moderately severe or severe incomplete paralysis or impairment during the period on appeal.

9.  The Veteran’s right hip disability manifested by impairment of the thigh has been assigned the maximum schedular disability rating for this disability during entire appeal period under Diagnostic Code 5253. 

10. The Veteran’s right hip disability has not been manifested by limitation of the extension to 5 degrees.  

11. The Veteran’s right hip disability has not been manifested b limitation of flexion to 45 degrees. 

12. The Veteran’s left hip disability has not been manifested by limitation of flexion to 30 degrees.  

13. The Veteran’s left hip disability has not been manifested by limitation of extension to 5 degrees. 

14. The Veteran’s left hip disability has not been manifested by impairment of the thigh resulting in limitation of rotation of the thigh, where he cannot toe-out more than 15 degrees or limitation of adduction of the thigh, where he cannot cross legs.  

15. The most probative evidence of record does not show the Veteran’s osteomyelitis of the right femur has been manifested by discharging sinus or other evidence of active infection within the past five years.  

16. The Veteran is in receipt of the maximum schedular rating for muscle hernia without muscle injury and his right thigh muscle hernia has not been manifested by a through and through or deep penetrating wound. 

17. The Veteran’s fracture, midshaft of right femur, healed postoperative, with shortening in the right lower extremity (right leg discrepancy) has not been manifested by shortening of 5.1 to 6.4 cms. 

18. The Veteran’s right thigh scar disability has not been painful or unstable. 

19.  The Veteran’s left testicle injury disability has not resulted in testis atrophy, voiding, or renal dysfunction.

20.  For the period on appeal prior to October 8, 2019, the Veteran’s lumbosacral strain status post decompressive laminectomy (back disability) has been manifested by functional impairment that limited flexion of the thoracolumbar spine 30 degrees or less.

21. For the period on appeal beginning October 8, 2019, the Veteran’s lumbosacral strain status post decompressive laminectomy (back disability) has not been manifested by unfavorable ankylosis of the entire thoracolumbar or incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to June 9, 2005, for service connection for lumbosacral strain status post laminectomy (back disability) have not been met.  38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2019).

2. The criteria for an effective date prior to December 1, 2016, for the grant of the separate noncompensable rating for left hip DJD (limitation of extension) under Diagnostic Code 5003-5251 have not been met.  38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Code 5003-5251 (2019. 

3. The criteria for an effective date prior to December 1, 2016, for the grant of the separate noncompensable rating for left hip DJD (impairment of thigh) under Diagnostic Code 5003-5253 have not been met.  38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Code 5003-5253 (2019).   

4. The criteria for an effective date prior to December 1, 2016, for the grant of the separate noncompensable rating for right hip DJD (limitation of extension) under Diagnostic Code 5010-5251 have not been met.  38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Code 5003-5251 (2019). 

5. The criteria for an effective date prior to December 1, 2016, for the grant of the separate noncompensable rating for right hip DJD (limitation of flexion) under Diagnostic Code 5010-5252 have not been met.  38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Code 5010-5252 (2019).  

6. The criteria for an effective date prior to December 1, 2016, for the grant of the 20 percent rating for right side sciatica have not been met.  38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, Diagnostic Code 8520 (2019).  

7.  The criteria for a disability rating in excess of 20 percent for the right side sciatica have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2019).

8. The criteria for a disability rating in excess of 20 percent for the left side sciatica have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2019). 

9. The criteria for a disability rating in excess of 20 percent for right hip disability manifested by impairment of thigh have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5253 (2019). 

10. The criteria for a compensable disability rating for right hip disability with limitation of extension have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5251 (2019). 

11. The criteria for a compensable disability rating for right hip disability with limitation of flexion have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5252 (2019). 

12. The criteria for a disability rating in excess of 10 percent for left hip disability with limitation of flexion have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5252-5003 (2019).  

13. The criteria for a compensable disability rating for left hip disability with limitation of extension have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5003-5251 (2019). 

14. The criteria for a compensable disability rating for right hip disability manifested by impairment of thigh have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5003-5253 (2019).  

15.  The criteria for entitlement to a rating in excess of 10 percent for osteomyelitis have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.150 Diagnostic Code 5000 (2019).

16. The criteria for a disability rating in excess of 10 percent for right thigh muscle hernia have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.55, 4.56, 4.73, Diagnostic Codes 5326, 5314 (2019). 

17. The criteria for a disability rating in excess of 10 percent for fracture, midshaft of right femur, healed postoperative, with shortening in the right lower extremity (right leg discrepancy) are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2019).

18.  The criteria for a compensable disability rating for right thigh scar disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805 (2019).

19. The criteria for a compensable disability rating for left testicle injury disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), Diagnostic Codes 7599-7523 (2019).  

20. For the period on appeal prior to October 8, 2019, the criteria for a 40 percent disability rating but no higher, for lumbosacral strain status post decompressive laminectomy (back disability) have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2019).  

21. For the period on appeal prior to October 8, 2019, the criteria for a disability rating in excess of 40 percent for lumbosacral strain status post decompressive laminectomy (back disability) have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1959 to June 1963. 

The Veteran testified before a Decision Review Officer (DRO) at a March 2019 DRO hearing.  A transcript is of record.  At his March 2019 DRO hearing, the Veteran withdrew his claims for increased rating for lower back scar and earlier effective date for lower back scar.  See March 2019 DRO hearing testimony at 2; see also March 2019 VA Form-21-6789.  Accordingly, these matters are not before the Board on appeal.  

In March 2019, the Board granted a restoration of a 20 percent disability rating for right hip degenerative joint disease (DJD) (thigh impairment) under Diagnostic Code 5010-5253 from March 30, 2017.  The Board remanded the claims for earlier effective dates for right hip DJD (limitation of extension), left hip DJD (limitation of extension), right hip DJD (limitation of flexion), left hip DJD (impairment of thigh) and earlier effective date for the grant of a 20 percent rating for right sided sciatica; increased ratings for right hip DJD (impairment of thigh), right hip DJD (limitation of extension), right hip DJD (limitation of flexion), left hip DJD (limitation of flexion), left hip DJD (limitation of extension), left hip DJD (impairment of thigh), right sided sciatica, left sided sciatica, right femur osteomyelitis, right thigh muscle hernia, right femur midshaft fracture healed postoperative with shortening in the right lower extremity, scar of the right thigh, left testicle injury, and TDIU. These matters have been returned to Board for appellate review.

Additionally, the Veteran has perfected an appeal of the claim for increased rating for lumbosacral strain status post decompressive laminectomy (claimed as back condition) and entitlement to an earlier effective date for the grant of service connection for lumbosacral strain status post decompressive laminectomy.  See January 2020 VA Form-9.  As such, these matters are also before the Board on appeal. 

In a November 2019 rating decision, the AOJ granted entitlement to TDIU, effective October 8, 2019; the Board will evaluate entitlement to TDIU for the period on appeal prior to October 8, 2019, accordingly. 

The Board acknowledges a June 2020 statement from the Veteran’s representative, which stated that “I am in receipt of your letter dated May 14, 2020.  I am writing to request the full 90 days to submit additional argument or evidence in this matter.” The referenced May 14, 2020 letter from the Board, which essentially stated that the appellate record had been transferred to the Board, referenced 38 C.F.R. § 20.1304, which states as relevant that: 

An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans’ Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. 

As outlined, the regulation provides that following the mailing of notice that the appellate record has been transferred to the Board, the Veteran and/or representative “will be granted a period of 90 days... or until the date the appellate decision is promulgated by the Board of Veterans’ Appeals, whichever comes first.”  As such, the regulation does not require the Board to provide 90 days prior to issuing a decision following the notice that the appellate record has been transferred to the Board.  

To the extent that the June 2020 statement is viewed as motion for an extension, such request is denied.  See 38C.F.R. §20.3(l).  As outlined, the applicable regulation does not require the Board to provide a 90-day period following notice of transfer of the appellate record.  Moreover, this case has been advanced on the Board’s docket and the Veteran’s representative did not offer any good cause for the requested extension of time.  

Earlier Effective Date

The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter.  38 C.F.R. § § 3.400.

A rating decision becomes final and binding if the veteran does not timely perfect an appeal of the decision, or unless new and material evidence is received prior to the expiration of the appeal period.  38 U.S.C. § § 7105; 38 C.F.R. § §§ 3.104(a), 3.160(d), 3.156, 20.200, 20.302, 20.1103.  

Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. § §§ 3.105(a), 20.1400.  In order for a veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).

If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.”  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C. § § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998).  In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions.  Hazan v. Gober, 10 Vet. App. 511 (1997).

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § § 5101(a).  In pertinent part, prior to March 24, 2015, any communication or action indicating an intent to apply for one or more VA benefits could be considered an informal claim.  Under 38 C.F.R. § § 3.155(a), the veteran or a representative of the veteran could file an informal claim by communicating an intent to apply for one or more VA benefits.  Upon receipt of an informal claim, if a formal claim had not been filed, an application form would be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it would be considered filed as of the date of receipt of the informal claim. 

An “application” is used synonymously with “claim” and defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).

Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum.  Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

1. Entitlement to an effective date prior to June 9, 2005 for the grant of service connection for lumbosacral strain status post laminectomy (back disability).

Service connection for a back condition was initially denied in a May 1985 rating decision. The Veteran did not appeal the May 1985 rating decision and new and material evidence was not received within one year.  Thus, the May 1985 rating decision became final.  

The next communication from the Veteran regarding a claim for service connection for a back condition was on June 9, 2005, when VA received from the Veteran a VA Form 21-4138, statement in support of claim, wherein the Veteran raised a claim for lower back condition.  See June 2005 VA Form 21-4138.  The claim remained pending as the September 2005 rating decision failed to adjudicate the claim for service connection for lower back condition. 

In a May 2018 rating decision, the AOJ found clear and unmistakable in the September 2005 rating decision and granted service connection for lumbosacral strain status post laminectomy (claimed as back condition) and assigned a 10 percent evaluation, effective June 9, 2005.  

Neither the Veteran nor his representative have identified or asserted that between the period from May 1985 and June 2005, an unadjudicated claim for service connection for back condition was filed or remains pending.  Instead, the Veteran has generally indicated entitlement to an earlier effective date.  However, the Board finds the evidence of record indicates the Veteran did not file a claim, either formal or informal, for entitlement to service connection for back condition prior to his June 2005, claim.  Significantly, the evidence of record indicates no correspondence from the Veteran was received by VA for the period between May 1985 and June 2005, requesting a determination of entitlement or evidencing a belief in entitlement to service connection for back condition.  Therefore, after the unappealed May 1985 rating decision that denied service connection for a back condition, for VA did not receive any correspondence prior to June 9, 2005, that demonstrated an intent on the part of the Veteran to seek disability compensation benefits for lower back condition.    

To the extent the Veteran has asserted that he had a back disability prior to June 9, 2005, as explained above, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).  As such, the June 9, 2005, date of claim for back disability, is the effective date.  See 38 C.F.R. § 3.400(b)(2). 

For these reasons, the Board finds that the preponderance of the evidence is against the claim for an effective date prior to June 9, 2005, for the grant of service connection for lumbosacral strain status post laminectomy (back disability).  Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is inapplicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102.  Accordingly, the claim is denied.

2. Entitlement to an effective date prior to December 1, 2016 for the grant of the separate noncompensable disability ratings for left hip degenerative joint disease limitation of extension and left hip degenerative joint disease.

As an initial matter, with respect to the earlier effective date claims on appeal regarding the Veteran’s left hips, a December 1, 2016 claim was submitted by the Veteran’s representative that included “increase [DJD] both hips.”  At the time of this increased rating claim, the Veteran was service-connected for right hip DJD and assigned a 20 percent disability rating under Diagnostic Code 5010-5253 and service-connected for left hip DJD and assigned a 10 percent disability rating under Diagnostic Code 5010-5251.  A March 2017 rating decision stated that it granted service connection for left hip DJD (impairment of thigh) and left hip DJD (limitation of extension) and assigned 0percent disability ratings, effective December 1, 2016.  The AOJ assigned the zero percent disability ratings under Diagnostic Codes5003-5253 (impairment of thigh) and 5003-5251 (limitation of extension).  The rating decision also stated that it was continuing the previously assigned 10 percent disability rating for left hip DJD.  Review of the accompanying codesheet indicated that the AOJ continued the 10 percent disability rating under Diagnostic Code 5252-5003, which was a change from the previously assigned 10 percent disability rating under Diagnostic Code 5010-5251. The Veteran’s representative filed an October 2017 NOD as to the March 2017 rating decision and noted regarding left hip DJD (impairment of thigh) and left hip DJD (limitation of extension) that the areas of disagreement were the “Effective Date of Award” and “Evaluation of Disability.”  The AOJ accepted this NOD as an appeal of the assigned disability ratings (i.e. an increased rating claim) for left hip DJD (limitation of extension) under Diagnostic Code 5003-5251 and for left hip DJD (impairment of thigh) under Diagnostic Code 5003-5253.  The AOJ also accepted this NOD as an appeal of the effective date (December 1, 2016) that such ratings were assigned.  The AOJ characterized in the March 2018 SSOC the relevant issues on appeal as “[e]ntitlement to service connection for left hip [DJD] (impairment of thigh) prior to December 1, 2016” and “[e]ntitlement to service connection for left hip [DJD] (limitation of extension) prior to December 1, 2016.” While the AOJ characterized in the March 2017 rating decision its actions as a grant of service connection, service connection was not actually granted for an additional disability, but rather the already service-connected disability of left hip DJD was assigned additional disability ratings under new Diagnostic Codes.  The assigned effective date at issue of December 1, 2016 was noted to be based on the claim filed on that date, which as noted above was an increased rating claim.  

Except as otherwise provided, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.  For increased rating claims, 38 C.F.R. § 3.400(o)(2) potentially allows for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred.  The appeal period for the increased rating claims inherently includes the one-year period prior to the December 1, 2016 increased rating claim based on consideration of 38 C.F.R. § 3.400(o)(2).  For the reasons as outlined above, in regard to the earlier effective date for right hip claims, the Board finds that the effective date claims for the right hip will be evaluated with the increase rating claims, and assess the severity of the hip disabilities at issue, to include within the one year prior to the December 1, 2016 claim for increased ratings.  

Turning to merits of the claim, the AOJ granted service connection for a left hip disability, effective June 9, 2005 in a September 2005 rating decision; the September 2005 decision became final.  

The next communication from the Veteran seeking an increased disability rating for left hip disability was in December 2016.  See December 2016 VA Form 21-526EZ.  On December 1, 2016, VA received the Veteran’s claim for increased rating for all service-connected disabilities.  See December 2016 VA Form 21-526EZ.  In a March 2017 rating decision, the AOJ granted separate noncompensable rating for left hip degenerative joint disease (DJD) (limitation of extension) and assigned a noncompensable evaluation, effective December 1, 2016.  In a March 2017 rating decision, the AOJ granted separate noncompensable left hip degenerative joint disease (impairment of thigh) and assigned a noncompensable evaluation, effective December 1, 2016.

The Veteran contends he is entitled to an earlier effective for the grant of the separate noncompensable disability ratings for left hip degenerative joint disease limitation of extension and left hip degenerative joint disease.

The Board finds that entitlement to an effective date of June 9, 2005, for the grant separate noncompensable disability ratings for left hip degenerative joint disease limitation of extension and left hip degenerative joint disease cannot be established.  As noted above, the September 2005 rating decision became final. To date, CUE has not been asserted by the Veteran, and is not presently before the Board on appeal.  Accordingly, the Board finds an effective date for the grant of noncompensable disability ratings for left hip degenerative joint disease limitation of extension and left hip degenerative joint disease cannot be established prior to the final 2005 rating decision.  See 38 C.F.R. § 3.400.

Next, the Board finds the Veteran did not have pending claim, either formal or informal, for an increased disability rating prior to the December 1, 2016, claim.  Following the unappealed September 2005 rating decision, the evidence of record does not support that either the Veteran indicated an intent to apply for an increased disability rating for left hip, or indicating the Veteran’s left hip disability had worsened, prior to the communication received on December 1, 2016.  Further, the Board finds that an informal claim was not received in accordance with 38 C.F.R. § 3.157.  

Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the separate noncompensable disability ratings for his left hip degenerative joint disease limitation of extension and left hip degenerative joint disease.  See 38 C.F.R. § 3.400(o)(1).  The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable.  See Servello, 3 Vet. App. 196; 38 U.S.C. § § 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2).

The Veteran’s left hip DJD limitation of extension is rated under Diagnostic Code 5251, and his left hip DJD impairment of thigh is rated under Diagnostic Code 5253. 

Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating.  38 C.F.R. § 4.71a. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating.  38 C.F.R. § 4.71a. Impairment of the thigh is rated under Diagnostic Code 5253.  Limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees, in the affected leg warrants a 10 percent rating.  Limitation of adduction of the thigh, where one cannot cross legs, also warrants a 10 percent rating.  Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating.  38 C.F.R. § 4.71a. 

The Board has reviewed the evidence of record for the period between December 2015 and December 2016, and the Board finds that the evidence does not support that it is factually ascertainable that prior to the Veteran’s December 1, 2016, claim, that his left hip disability increased in severity to meet the criteria for separate evaluations for left hip degenerative joint disease limitation of extension and/or  left hip degenerative joint disease.  The medical evidence in the file pertaining to the left disability, for the relevant period is sparse, and does not support that the Veteran’s symptoms meet the criteria for separate evaluations for left hip degenerative joint disease limitation of extension and/or left hip degenerative joint disease prior to December 1, 2016.  

Accordingly, the Board concludes that the Veteran is not entitled to an effective date prior to December 1, 2016, his date of claim for increased rating, for left hip degenerative joint disease limitation of extension and/or left hip degenerative joint disease.  38 C.F.R. § 3.400(o).  Therefore, the Board finds that an effective date prior to December 1, 2016, for the grant of separate evaluations for left hip degenerative joint disease limitation of extension and/or left hip degenerative joint disease are not warranted and the claims are denied.  See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 

3. Entitlement to an effective date prior to December 1, 2016 for the grant the grant of the separate noncompensable disability ratings for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease.

As an initial matter, with respect to the earlier effective date claims on appeal regarding the Veteran’s right hips, a similar process occurred.  In this regard, a June 2017 rating decision stated that it granted service connection for right hip DJD (thigh, limitation of extension) and right hip DJD (thigh, limitation of flexion) and assigned zero percent disability ratings, effective December 1, 2016.  The AOJ assigned the zero percent disability ratings under Diagnostic Codes5010-5251 (limitation of extension) and 5010-5252 (limitation of flexion).  The earlier March 2017 rating decision had continued a previously assigned 20 percent disability for right hip DJD under Diagnostic Code 5010-5253.  The Veteran’s representative filed an October 2017 NOD as to the June 2017 rating decision that was similar to the October 2017 NOD previously discussed that addressed the left hip.  Based on this NOD, the AOJ characterized in the February 6, 2018 SOC the relevant issues on appeal as “[s]ervice connection for right hip [DJD] (thigh, limitation of extension) prior to December 1, 2016” and “[s]ervice connection for right hip [DJD] (thigh, limitation of extension) prior to December 1, 2016.” The appeal period for the increased rating claims inherently includes the one-year period prior to the December 1, 2016 increased rating claim based on consideration of 38 C.F.R. § 3.400(o)(2).  For the same reasons as outlined above, in regard to the earlier effective date for left hip claims, the Board finds that the effective date claims for the left hip will be evaluated with the increase rating claims, and assess the severity of the hip disabilities at issue, to include within the one year prior to the December 1, 2016 claim for increased ratings.  

Turning to the merits of the claims, the AOJ granted service connection for a right hip disability in a September 2005 rating decision, effective June 9, 2005; the September 2005 decision became final.  Thereafter, the Veteran filed a July 2011 claim for increased rating and in a September 2011 rating decision, an increased 20 percent evaluation for right hip disability was granted, effective July 6, 2011; the decision became final. 

The next communication from the Veteran seeking an increased disability rating for right hip disability was in December 2016.  See December 2016 VA Form 21-526EZ.  On December 1, 2016, VA received the Veteran’s claim for increased rating for all service-connected disabilities.  See December 2016 VA Form 21-526EZ.  In an April 2017 rating decision, the AOJ granted separate noncompensable rating for right hip DJD (thigh, limitation of extension), effective December 1, 2016.  In an April 2017 rating decision, the AOJ granted separate noncompensable rating for right hip DJD (thigh, limitation of flexion), effective December 1, 2016.  The Veteran contends he is entitled to an earlier effective for the grant of the separate noncompensable disability ratings for right hip DJD (thigh, limitation of extension) and right hip DJD (thigh, limitation of flexion). 

The Board finds that entitlement to an effective date of June 9, 2005, for the grant separate noncompensable disability ratings for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension cannot be established.  As noted above, the September 2005 rating decision became final.  Additionally, entitlement to an effective date of July 6, 2011, for the grant separate noncompensable disability ratings for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension cannot be established.  As noted above, the September 2011 rating decision became final.  To date, CUE has not been asserted by the Veteran, and is not presently before the Board on appeal.  Accordingly, the Board finds an effective date for the grant of separate noncompensable disability ratings for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension cannot be established prior to the final 2011 rating decision.  See 38 C.F.R. § 3.400.

Next, the Board finds the Veteran did not have pending claim, either formal or informal, for an increased disability rating prior to the December 1, 2016, claim.  Following the unappealed September 2011 rating decision, the evidence of record does not support that either the Veteran indicated an intent to apply for an increased disability rating for right hip, or indicating the Veteran’s right hip disability had worsened, prior to the communication received on December 1, 2016.  Further, the Board finds that an informal claim was not received in accordance with 38 C.F.R. § 3.157.  

Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the separate noncompensable disability ratings for his right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension.  See 38 C.F.R. § 3.400(o)(1).  The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable.  See Servello, 3 Vet. App. 196; 38 U.S.C. § § 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2).

The Veteran’s right hip disability is currently assigned separate noncompensable ratings for right hip DJD thigh, limitation of extension under Diagnostic Codes 5251 and for limitation of right hip DJD thigh, limitation of flexion under Diagnostic Codes 5252.

Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating.  38 C.F.R. § 4.71a. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating.  38 C.F.R. § 4.71a. Impairment of the thigh is rated under Diagnostic Code 5253.  Limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees, in the affected leg warrants a 10 percent rating.  Limitation of adduction of the thigh, where one cannot cross legs, also warrants a 10 percent rating.  Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating.  38 C.F.R. § 4.71a. 

The Board has reviewed the evidence of record for the period between December 2015 and December 2016, and the Board finds that the evidence does not support that it is factually ascertainable that prior to the Veteran’s December 1, 2016, claim, that his right hip disability increased in severity to meet the criteria for separate evaluations for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension.  The medical evidence in the file pertaining to the right hip disability, for the relevant period is sparse, and does not support that the Veteran’s symptoms meet the criteria for separate evaluations for right hip degenerative joint disease limitation of extension and right hip degenerative joint disease limitation of extension prior to December 1,2016.  

Accordingly, the Board concludes that the Veteran is not entitled to an effective date prior to December 1, 2016, his date of claim for increased rating, for right hip degenerative joint disease limitation of extension and/or right hip degenerative joint disease limitation of extension.  38 C.F.R. § 3.400(o).  Therefore, the Board finds that an effective date prior to December 1, 2016, for the grant of separate evaluations for right hip degenerative joint disease limitation of extension and/or right hip degenerative joint disease limitation of extension are not warranted and the claims are denied.  See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 

4. Entitlement to an effective date prior to December 1, 2016 for the grant of the 20 percent disability rating for right side sciatica.

A somewhat 2016 similar process to the hips occurred related to the right sided sciatica effective date claim.  A December 1, 2016 claim was submitted by the Veteran’s representative that included “increase sciatica both legs.”  At the time of this claim, the Veteran was service connected for right sided sciatica and assigned a 10 percent disability rating.  A March 2017 rating decision increased the assigned disability rating to 20 percent, effective December 1, 2016.The Veteran’s representative filed an October 2017 NOD as to the March 2017 rating decision and noted regarding right sided sciatica that the areas of disagreement were the “Effective Date of Award” and “Evaluation of Disability.” The AOJ accepted this NOD as an appeal of the assigned disability ratings (i.e. an increased rating claim) for right sided sciatica.  The AOJ also accepted this NOD as an appeal of the effective date (December 1, 2016) that the 20 percent disability rating was assigned.  The AOJ characterized in the March 2018 SSOC the relevant issue on appeal as “[e]ntitlement to a 20 percent evaluation for right sided sciatica, claimed as back condition prior to December 1, 2016.”  The AOJ’s characterization of this issue implicates the one-year period prior to the December 1, 2016 increased rating claim, pursuant to 38 C.F.R. § 3.400(o)(2).  For the same reasons as outlined above with the hips, in regard to the earlier effective date for right sided sciatica, the Board finds that the effective date claim for right sided sciatica will be evaluated with the increase rating claim, and assess the severity of the right sided sciatica at issue, to include within the one year prior to the December 1, 2016 claim for increased ratings.  

Turning to the merits of the claims, the AOJ granted service connection for right side sciatica disability in a September 2005 rating decision, effective June 9, 2005; the September 2005 decision became final.  Thereafter, the AOJ readjudicated the matter and continued the 10 percent evaluation in a November 2005 rating decision; the decision became final.  The Veteran filed a July 2011 claim for increased rating for right side sciatica and in a September 2011 rating decision, the AOJ continued the 10 percent rating; the decision became final.   Thereafter, the Veteran filed a February 2013 claim for increased rating and in an April 2013 rating decision, the AOJ granted a temporary total evaluation; the decision became final. 

The next communication from the Veteran seeking an increased disability rating for right side sciatica disability was in December 2016.  See December 2016 VA Form 21-526EZ.  On December 1, 2016, VA received the Veteran’s claim for increased rating for all service-connected disabilities.  See December 2016 VA Form 21-526EZ.  In a March 2018 rating decision, the AOJ granted an increased rating for left sided sciatica from 10 percent to 20 percent, effective December 1, 2016, and in a March 2019 Board Decision, the Board restored the Veteran’s 20 percent rating, effective March 30, 2017.  

The Board finds that entitlement to an effective date of June 9, 2005, for the grant of the 20 percent rating for right side sciatica cannot be established.  As noted above, the September 2005 rating decision became final.  Additionally, an effective date prior to April 2013 cannot be established.  As noted above, the April 2013 rating decision became final.  To date, CUE has not been asserted by the Veteran, and is not presently before the Board on appeal.  Accordingly, the Board finds an effective date for the grant of the 20 percent rating for right side sciatica cannot be established prior to the final April 2013 rating decision.  See 38 C.F.R. § 3.400.

Next, the Board finds the Veteran did not have pending claim, either formal or informal, for an increased disability rating prior to the December 1, 2016, claim.  Following the unappealed April 2013 rating decision, the evidence of record does not support that either the Veteran indicated an intent to apply for an increased disability rating for right side sciatica, or indicating the Veteran’s right sciatica disability had worsened, prior to the communication received on December 1, 2016.  Further, the Board finds that an informal claim was not received in accordance with 38 C.F.R. § 3.157.  

Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the separate noncompensable disability ratings for his right sciatica disability.  See 38 C.F.R. § 3.400(o)(1).  The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable.  See Servello, 3 Vet. App. 196; 38 U.S.C. § § 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2).

The Veteran’s right side sciatica disability is currently assigned a 20 percent evaluation under Diagnostic Codes 8520.

Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520.   

The Board has reviewed the evidence of record for the period between December 2015 and December 2016, and the Board finds that the evidence does not support that it is factually ascertainable that prior to the Veteran’s December 1, 2016, claim, that his right side sciatica disability increased in severity to meet the criteria for a 20 percent rating.  The medical evidence in the file pertaining to the right hip disability, for the relevant period is sparse, and does not support that the Veteran’s symptoms meet the criteria for separate evaluations for right side sciatica prior to December 1,2016.  

Accordingly, the Board concludes that the Veteran is not entitled to an effective date prior to December 1, 2016, his date of claim for increased rating, for right side sciatica.  38 C.F.R. § 3.400(o).  Therefore, the Board finds that an effective date prior to December 1, 2016, for the grant of a 20 percent rating for right side sciatica disability is not warranted and the claim is denied.  See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). 

The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings).

1. Right side and left side sciatica

The Veteran filed a December 2016 claim for increased rating.  In a March 2017 rating decision, the AOJ granted an increased rating from 10 percent to 20 percent for right side sciatica (claimed as back condition), effective December 1, 2016.  In a March 2018 rating decision, the AOJ granted an increased rating for left sided sciatica from 10 percent to 20 percent, effective December 1, 2016.  

The Veteran is currently in receipt of a 20 percent disability rating for right sided sciatica and a 20 percent disability rating for left sided sciatica under Diagnostic Code 8520. 

Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve.  38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. 

The term “incomplete paralysis,” with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a.

Turning to the most probative evidence of record during the relevant period, upon January 2017 VA nerves examination, the examiner indicated that the Veteran had right side, mild, incomplete paralysis of the sciatic nerve and left side, mild incomplete paralysis of the sciatic nerve.  The examiner opined that the overall severity was “moderate.”

The October 2019 VA examination report indicated that the Veteran had bilateral involvement of L4/L5/S1/S2/S3nerve roots (sciatic nerve).  The examiner indicated that the Veteran had mild, right lower extremity constant pain; moderate, bilateral lower extremity intermittent pain; moderate, right lower extremity paresthesias and/or dysesthesias; and moderate, right lower extremity numbness.  The examiner opined that the overall severity of the Veteran’s right lower extremity sciatica was moderate and left lower extremity sciatica was mild. 

After a review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for right sciatica and/or left side sciatica as the weight of the evidence shows that the service-connected bilateral lower extremity sciatica is productive of no more than moderate impairment or moderate incomplete paralysis for the entire period on appeal. The weight of the evidence does not show moderately severe or severe incomplete paralysis or impairment during the period on appeal. The evidence does not demonstrate complete paralysis of the affected nerve. The weight of the competent and credible evidence does not establish foot drop on the right. The rating schedule indicates that when involvement of the peripheral nerve is wholly sensory, the rating should be for mild or at most moderate impairment. See 38 C.F.R. § 4.124a. The Board concludes that the weight of the evidence supports no more than the 20 percent rating that is currently assigned for the service-connected the right side sciatica and left side sciatica for the entire period on appeal.  The Board concludes that the weight of the evidence supports no more than the 20 percent rating that is currently assigned for the service-connected the right side sciatica and left side sciatica for the entire period on appeal.  

The Veteran himself has generally asserted that his lower extremity sciatica is more severe and higher disability ratings are warranted. However, the Veteran, as a layperson, does not have the medical expertise to assessment the severity of sciatica and his lay statements are of little probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

The VA examination reports provided a medical assessment as to the right and left side sciatica. The VA examination reports and findings are considered highly probative, as it is shown to have been based on a review of the Veteran’s claims file, examination of the Veteran, and is accompanied by a sufficient explanation and exam findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

The Board acknowledges that the Veteran is competent to report his symptoms and observations, to include his reports as to pain, and the Board finds these reports are credible. However, the Board finds that the assessment of the severity of sciatica is a medical question, and as such are beyond the Veteran’s competence to evaluate based upon his own knowledge and expertise. The record does not indicate that the Veteran has medical expertise or training. Thus, his determination that the bilateral sciatica is more severe is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, the Veteran’s lay opinions have no probative value.

For the reasons above, the criteria for a rating in excess of 20 percent for right side and/or left side sciatica have not been met or more nearly approximated during the period on appeal.   As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 

2. Left hip disabilities 

The Veteran filed a December 2016 claim for increased rating.  In a March 2017 rating decision, the AOJ granted a separate noncompensable rating for left hip degenerative joint disease (DJD) (limitation of extension), effective December 1, 2016.  In a March 2017 rating decision, the AOJ granted a separate noncompensable rating for left hip DJD (impairment of thigh), effective December 1, 2016.

The Veteran is currently rated at 10 percent for left hip DJD limitation of flexion under Diagnostic Code 5252-5003, 0 percent for left hip DJD limitation of extension under Diagnostic Code 5003-5251, and 0 percent for left hip DJD impairment of thigh Diagnostic Codes 5003-5253. 

Hyphenated diagnostic codes signify that the rating for a service-connected disability is based upon how another disability would be rated. 38 C.F.R. § 4.27. The diagnostic code for the service-connected disability is after the hyphen. Here, the Veteran’s left hip disabilities due to arthritis are rated based on limitation of motion under the appropriate code. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.27.  

Normal ranges of motion of the hip include flexion from 0 degrees to 125 degrees, and abduction from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating.  38 C.F.R. § 4.71a.

Impairment of the thigh is rated under Diagnostic Code 5253.  Limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees, in the affected leg warrants a 10 percent rating.  Limitation of adduction of the thigh, where one cannot cross legs, also warrants a 10 percent rating.  Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating.  38 C.F.R. § 4.71a. 

Ankylosis of the hip is evaluated under Diagnostic Code 5250.  Favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating. Intermediate ankylosis warrants a 70 percent rating.  Unfavorable ankylosis with extremely unfavorable ankylosis, the foot not reaching the ground, crutches necessitated warrants a 90 percent rating.  38 C.F.R. § 4.71a.

Normal range of motion of the hip and thigh is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Turning to the evidence of record during the relevant period, the Veteran was afforded several VA examinations to assess the severity of his left hip disabilities.  Significantly, the January 2017 VA examination report indicated that the Veteran reported flare-ups of increased pain and tightness which makes him sit and need to stretch.  He reported having no functional loss or functional impairment.  Range of motion testing showed left hip flexion to 120 degrees, with no objective evidence of painful motion, and extension greater than 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  There was no additional limitation of motion after repetitive use testing. The examiner indicated that there was no muscle atrophy and there was no evidence of ankylosis. 

Upon March 2017 VA examination, the Veteran did not report experiencing flare-ups. Left hip range of motion testing showed flexion to 125 degrees, extension to 20 degrees, abduction to 35 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 45 and 30 degrees respectively. There was no evidence of pain with weight bearing and there was no additional loss of motion after repetitive use testing. 

The May 2018 VA examination report indicated that the Veteran did not report experiencing flare-ups. Left hip range of motion testing showed flexion to 120 degrees, extension to 20 degrees, abduction to 45 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 30 and 40 degrees respectively. There was no additional loss of motion after repetitive use testing.  Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees.

The September 2019 VA examination report revealed that the Veteran did not report experiencing flare-ups. Left hip range of motion testing showed flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 60 and 40 degrees respectively. There was no additional loss of motion after repetitive use testing.  Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees. There was no evidence of ankylosis. 

The Board finds that the evidence does not show that the Veteran’s left hip disability warrants higher ratings. Specifically, he has not demonstrated extension limited to 5 degrees, which is required for a 10 percent rating under Diagnostic Code 5251. The Veteran is currently rated at 10 percent for left hip limitation of flexion under Diagnostic Code 5252, and he has not demonstrated flexion limited to 30 degrees, required for a 20 percent rating.  Instead, his most reduced flexion was 120 degrees. Additionally, the Veteran’s left hip, impairment of thigh has not demonstrated inability toe-out more than 15 degrees, inability to cross legs, or abduction of the thigh with motion lost beyond 10 degrees; thus, a compensable rating under Diagnostic Codes 5253 is not warranted.  Accordingly, the Veteran is not entitled to a higher rating pursuant to the schedular rating criteria. 

The Board also considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 206-07. The Board based the Veteran’s ratings on his maximum range of motion prior to objective evidence of pain. Moreover, the VA examinations show that the Veteran did not experience additional limitation of motion or functional loss after repetitive use testing. Importantly, the Veteran’s 10 percent rating already stems from painful motion, pursuant to 38 C.F.R. § 4.59, rather than meeting the schedular criteria under the applicable diagnostic codes. In light of the Veteran’s reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to higher ratings for his service-connected left hip disabilities. 

3. Right hip disabilities 

The Veteran filed a December 2016 claim for increased rating.  In an April 2017 rating decision, the AOJ granted a separate noncompensable rating for right hip degenerative joint disease (thigh, limitation of extension), effective December 1, 2016.  In an April 2017 rating decision, the AOJ granted a separate noncompensable rating for right hip degenerative joint disease (thigh, limitation of flexion), effective December 1, 2016.  In a March 2018 Board decision, the Board restored the Veteran’s 20 percent evaluation for right hip degenerative joint disease (impairment of thigh), effective March 30, 2017.  

The Veteran is currently rated 0 percent for right hip DJD thigh, limitation of extension under Diagnostic Codes 5010-5251, 0 percent for limitation of right hip DJD thigh, limitation of flexion under Diagnostic Codes 5010-5252, and 20 percent for right hip DJD impairment of thigh under Diagnostic Code 5010-5253.

Hyphenated diagnostic codes signify that the rating for a service-connected disability is based upon how another disability would be rated. 38 C.F.R. § 4.27. The diagnostic code for the service-connected disability is after the hyphen. Here, the Veteran’s right hip disabilities due to arthritis are rated based on limitation of motion under the appropriate code. 

Those rating criteria are discussed above.

Turning to the evidence of record for the relevant period, the Veteran was afforded several VA examinations to assess the severity of his right hip disabilities.  Significantly, the January 2017 VA examination report indicated that the Veteran reported flare-ups of increased pain and tightness which makes him sit and need to stretch.  He reported having no functional loss or functional impairment.  Range of motion testing showed right hip flexion to 115 degrees, with no objective evidence of painful motion, and extension greater than 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees. There was no additional limitation of motion after repetitive use testing. The examiner indicated that there was no muscle atrophy and there was no evidence of ankylosis.

Another VA examination was conducted in March 2017. The Veteran did not report experiencing flare-ups. Right hip range of motion testing showed flexion to 120 degrees, extension to 10 degrees, abduction to 20 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 25 and 50 degrees respectively. There was evidence of pain with weight bearing and there was no additional loss of motion after repetitive use testing.

The May 2018 VA examination report indicated that the Veteran did not report experiencing flare-ups. Right hip range of motion testing showed flexion to 120 degrees, extension to 25 degrees, abduction to 45 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 50 and 30 degrees respectively. There was no additional loss of motion after repetitive use testing.  Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees.

The September 2019 VA examination report revealed that the Veteran did not report experiencing flare-ups. Right hip range of motion testing showed flexion to 125 degrees, extension to 30 degrees, abduction to 45 degrees, and adduction to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs, but external and internal rotation was limited to 60 and 40 degrees respectively. There was no additional loss of motion after repetitive use testing.  Abduction was not lost beyond 10 degrees, nor was adduction limited such that the Veteran could not cross his legs or toe-out more than 15 degrees. There was no evidence of ankylosis. 

The Board finds that the evidence does not show that the Veteran’s right hip disability warrants higher ratings. The VA examinations show that, at worst, he has right hip flexion to 115 degrees and extension greater than 5 degrees. Therefore, compensable evaluations right hip limitation of extension under Diagnostic Code 5251 and/or right hip limitation of flexion under Diagnostic Code 5252 are not warranted. Moreover, the Veteran is already in receipt of the maximum 20 percent evaluation for right hip impairment of thigh under Diagnostic Code 5253, and a higher evaluation is not available.  

The Board also considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 206-07. The Board based the Veteran’s ratings on his maximum range of motion prior to objective evidence of pain. Moreover, the VA examinations show that the Veteran did not experience additional limitation of motion after repetitive use. Importantly, the Veteran’s maximum 20 percent rating under Diagnostic Code 5253 already stems from painful motion, pursuant to 38 C.F.R. § 4.59, rather than meeting the schedular criteria under the applicable diagnostic codes. He does not have limitation of flexion or extension that would warrant even a compensable rating. In light of the Veteran’s reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to higher ratings for his service-connected right hip disabilities.

4. Osteomyelitis, right femur

The Veteran filed a December 2016 claim for increased rating.  The Veteran’s osteomyelitis, right femur is current assigned a 10 percent evaluation under Diagnostic Code 5000.  See November 2019 rating codesheet. 

Osteomyelitis is rated under Diagnostic Code 5000, which provides for a 20 percent rating for osteomyelitis with discharging sinus or other evidence of active infection within the past 5 years; a 30 percent rating for osteomyelitis with definite involucrum or sequestrum, with or without discharging sinus; a 60 percent rating for osteomyelitis with frequent episodes and constitutional symptoms; and a 100 percent rating for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5000.

Turning to the evidence of record during the relevant period, the Veteran was afforded a January 2017 VA osteomyelitis examination and the report indicated that he had an incision and drainage in 1982.  The examiner indicated that the status of the Veteran’s osteomyelitis condition was “resolved.”  The examiner indicated that the Veteran did not have any symptoms attributable to osteomyelitis or treatment for osteomyelitis.  

The May 2018 VA examination report revealed the Veteran did not have current osteomyelitis symptoms.  The examiner stated that the Veteran was treated for right femur osteomyelitis with long term antibiotic orally previously, but has not had any treatment for years. Significantly, the has not had any additional episodes or recurring infections of osteomyelitis following the initial infection.

As the evidence does not support that the Veteran’s osteomyelitis symptoms have resulted in discharging sinus or other evidence of active infection as specifically related to osteomyelitis in the femur in the last five years, as required for a higher rating of 20 percent rating under Diagnostic Code 5000, a rating in excess of 10 percent rating is not warranted under Diagnostic Code 5000.

5. Muscle hernia, right thigh

The Veteran filed a December 2016 claim for increased rating.  The Veteran is currently rated 10 percent under Diagnostic Code 5326, for muscle hernia of the right thigh, a 10 percent rating is the maximum rating allowed under that Diagnostic Code 5236 for an extensive muscle hernia without other injury to the muscle. 38 C.F.R. § 4.73, Diagnostic Code 5326. Because the Veteran is in receipt of the maximum rating under Diagnostic Code 5326, the Board will also consider other potentially-applicable Diagnostic Codes.

Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73.

The Veteran’s muscle hernia of the right thigh involves is rated under 38 C.F.R. § 4.73, Diagnostic Code 5314, which pertains to Muscle Groups XIV and XV. The next higher rating, 20 percent, is warranted when the impairment is “moderately severe,” in nature. 

All muscle injuries are rated based on a scale characterized by “slight,” “moderate,” “moderately severe” and “severe,” and each of these terms is defined by a specific set of characteristics. 38 C.F.R. § 4.56 (d). Specifically, as is relevant here, a “moderately severe” muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3).

A “severe” muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. Id. 

After review of the lay and medical evidence of record for the relevant period, a 20 percent rating is not warranted. The January 2017 VA examination report indicated that the Veteran had a right thigh muscle hernia in 1990.  The report indicated that the Veteran did not have a have a penetrating muscle injury, such as a gunshot or shell fragment wound. He has no current symptoms or treatment.  The examiner identified the muscle group affected as Muscle group XIV, anterior thigh muscles; sartorius, rectus femoris, quadriceps on the right side. The examiner determined that the muscle injury did not impact his ability to work, such as resulting in inability to keep up with work requirements due to muscle injury.  

The May 2018 VA examination report revealed the Veteran’s right thigh muscle injury was not a penetrating muscle injury, such as a gunshot or shell fragment wound and he did not have a non-penetrating muscle injury (such as a   muscle strain, torn Achilles tendon or torn quadriceps muscle).  The examiner indicated that the muscle group involved was Muscle Group XV, medial thigh muscles: adductor longus, adductor brevis, adductor magnus, gracilis and not Muscle Group XIV.  Nevertheless, the Veteran did not have a penetrating muscle injury, such as a gunshot or shell fragment. 

Again, 38 C.F.R. § 4.56 describes a “moderately severe” injury as one resulting from multiple high velocity missiles, with debridement and intermuscular scarring, and hospitalization for approximately one month.  In this case, there is no such evidence either in the records at the time of the injury or within the current rating period. There are simply no complaints relating to the cardinal signs and symptoms of a moderately severe muscle disability for Muscle Group XIV or XV. 

For these reasons, the weight of the evidence shows the schedular criteria for a rating in excess of 10 percent under Diagnostic Code 5314 are not met or approximated for the entire rating period. 

6. Fracture, midshaft of right femur, healed postoperative, with shortening in the right lower extremity

The Veteran filed a December 2016 claim for increased rating.  The Veteran’s fracture, midshaft of right femur, healed postoperative, with shortening in the right lower extremity is current assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5275 pertaining to shortening of the lower extremity. 

A rating of 10 percent is warranted for shortening of 3.2 to 5.1 cms. A rating of 20 percent is warranted for shortening of 5.1 to 6.4 cms.; a rating of 30 percent for 6.4 to 7.6 cms.; a rating of 40 percent for 7.6 to 8.9 cms.; a rating of 50 percent for 8.9 to 10.2 cms.; and a rating of 60 percent for over 10.2 cms.  38 C.F.R. § 4.71a, Diagnostic Code 5275.  A Note following Diagnostic Code 5275 provides that this diagnostic code should not be combined with other ratings for fracture or faulty union in the same extremity. Id. 

Upon VA examination in January 2017, the right leg was measured as 1 and ¼ inches which is 3.18 cms. shorter than the left. There is no indication the Veteran’s right leg is any shorter than 3.5 cms.  The October 2019 VA examiner indicated that the Veteran’s left leg is one inch longer than his right.  None of these documented amounts of shortening meet the criteria for a 20 percent which requires shortening of 5.1 to 6.4 cms. Thus, a higher 20 percent rating is not warranted.

The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In this regard, the Board observes that the Veteran is already service connected for bilateral hip disabilities under Diagnostic Codes 5251, 5252, and 5253. The ratings assigned to both hips specifically contemplate symptoms of painful limited motion, weakness, the use of assistive devices, and functional factors resulting in impairment to activities with repetitive use, flare-ups, and other exacerbations and use. See Deluca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran was examined in January 2017 to determine the severity of the right leg shortening, and the examiner identified symptoms and impairment affecting the hips and legs noted as having altered gait due to leg height difference. These manifestations are already contemplated by the ratings assigned to the bilateral hips and any additional ratings would violate the rule against pyramiding in 38 C.F.R. § 4.14 (“The evaluation of the same disability under various diagnoses is to be avoided.”). The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher initial schedular rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.

7. Right thigh scar disability

The Veteran filed a December 2016 claim for increased rating.  The Veteran’s scar of the right thigh disability is currently rated as noncompensable under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.  During the pendency the Veteran’s appeal, VA amended criteria for rating skin disabilities effective August 13, 2018. Relevant to scar evaluation, the new regulation revises the rating criteria for Diagnostic Code 7801 and Diagnostic Code 7802, while Diagnostic Code 7800, 7804 and 7805 remain unchanged. See 83 Fed. Reg. 32,592 (July 13, 2018) (codified at 38 C.F.R. § 4.118). The new regulation applies to claims received on or after August 13, 2018 or previously filed claims that are pending on August 13, 2018 if the new regulation will render more favorable result for the Veteran.  The Board notes that the record does not show, and the Veteran has not alleged, scars from burns, or scars of the head, face, or neck.  As such, Diagnostic Code 7800 is not for consideration. 

Pre-August 13, 2018, Diagnostic Code 7801 provided that scars other than the head, face, or neck that are deep and nonlinear are assigned ratings based on the area or areas of the scar(s), with compensable ratings assigned for scars with an area totalling at least 39 square centimeters (sq. cm.).  Effective August 13, 2018, Diagnostic Code 7801 was amended to remove characterization as “deep and nonlinear scars” with characterization of “underlying soft tissue damage.” 

Pre-August 13, 2018, Diagnostic Code 7802 provided a 10 percent rating for scars other than the head, face, or neck that are superficial and nonlinear if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater.  Id.  Diagnostic Code 7802 was amended to remove “superficial and nonlinear” and replace it with “not associated with underlying soft tissue damage.”

Diagnostic Codes 7804 and 7805 were unaffected by the recent revisions. Based on either the old or new criteria, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating.  A 20 percent rating requires three or four scars that are unstable or painful.  A 30 percent rating requires five or more scars that are unstable or painful.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. Id.

Based on either the old or new criteria, under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Code 7800, 7801, 7802, and 7804 not considered in a rating provided under other appropriate Diagnostic Codes.

The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s right thigh scar under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The Veteran was provided with VA examinations in January 2017, March 2017, and May 2018. These examiners did not note any disabling effects or impairment associated with the Veteran’s right thigh scar. Instead, the January 2017 and March 2017 examination reports indicated that the Veteran did not have any scars that were painful and/or unstable, or is the total area of all related scars greater than 39 square cm.

The Board has also considered the other Diagnostic Codes pertaining to scars. However, the evidence of record does not support a conclusion that the Veteran’s right thigh scar warrants a compensable rating. The Veteran’s right thigh scar disability is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. It does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran’s right thigh scar disability is not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. 

At the January 2017, March2017, and May 2018 VA examinations, the examiners stated that the Veteran’s right thigh scar disability was not unstable or painful.  At his March 2017 VA examination, the VA examiner noted that the Veteran’s right thigh scar was linear and measured 21.5 centimeters long and 0.5 cm wide and was not painful or unstable.  The May 2018 VA scar examination report indicated the Veteran had a right thigh linear scar measuring 6 cm long and deep non-linear scar measuring 24 cm by 2 cm.  

The Board notes that the Veteran is competent to report observable symptoms, to include pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case, he has not asserted, and medical records have not shown, that the Veteran’s right thigh scar is manifest by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for right thigh scar disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

8. Left testicle injury

The Veteran filed a December 2016 claim for increased rating. The Veteran’s left testicle injury disability is currently rated as noncompensable under Diagnostic Code 7599-7523. The Board notes that the Veteran is rated by analogy and was previously rated under Diagnostic Code 7524.

In assessing the merits of this appeal, the Board will consider all applicable Diagnostic Codes. Under Diagnostic Code 7523, where there is complete atrophy of only one testis, a noncompensable (0 percent) disability rating is warranted; a 20 percent disability rating is warranted for complete atrophy of both testes. 38 C.F.R. § 4.115b. Further, under Diagnostic Code 7524, a noncompensable (0 percent) disability rating is warranted when there is removal of only one testis, and a 30 percent disability rating is warranted for the removal of both testes. Id.

Turning to the evidence of record during the relevant period, the Veteran underwent a series of pertinent examinations, to include VA examinations in March 2017 and May 2018.

The March 2017 VA examiner found that the Veteran’s left testicle injury, resolved had no pain and the condition has resolved. The examiner noted the Veteran did not take medication, did not have an orchiectomy, or any renal dysfunction. The examiner found the Veteran did not have a voiding dysfunction, erectile dysfunction, retrograde ejaculation, or any history of chronic epididymitis epididymo-oschitis, or prostatitis. The Veteran did not have any surgical scars, neoplasm or metastases. 

The May 2018 VA examination report revealed that the Veteran has not had any complaints in years and the condition is resolved.  The examiner noted the Veteran did not take medication, did not have an orchiectomy, or any renal dysfunction. The examiner found the Veteran did not have a voiding dysfunction, erectile dysfunction, retrograde ejaculation, or any history of chronic epididymitis epididymo-oschitis, or prostatitis. The examiner noted that the Veteran declined a genital examination because of normal anatomy.

As discussed above, under diagnostic Code 7523, a noncompensable disability rating is warranted when there is atrophy in one of the testicles and 30 percent in both. There is no evidence of any atrophy of the Veteran’s testicles. Absent testicle atrophy, urinary tract infection and/or renal or voiding dysfunction attributable to the left testicle injury, the Board finds the preponderance of the evidence is against the claim for a compensable disability rating for left testicle injury, and the increased disability rating request must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes 7523, 7542.

The Board notes that 38 C.F.R. § 5.115b directs that when a Veteran is rated under Diagnostic Code 7523, VA should consider whether special monthly compensation (SMC) under 38 C.F.R. § 3.350 for loss of creative organ is warranted. While the Board has considered whether SMC is warranted, as the evidence reflects that the Veteran only has pain and sensitivity in the testicles and retains the use of the testicle as a reproductive organ, SMC is not warranted in the instant matter. 38 C.F.R. § 3.350.

9. Lumbosacral strain status post laminectomy (back disability)

In a May 2018 rating decision, the AOJ found clear and unmistakable in the September 2005 rating decision and granted service connection for lumbosacral strain status post laminectomy (claimed as back condition) and assigned a 10 percent evaluation, effective June 9, 2005.  In a June 2018 rating decision, the AOJ granted an increased rating for lumbosacral strain status post laminectomy from 10 percent to 20 percent, effective May 15, 2018.   In a November 2019 rating decision, the AOJ granted an increased rating for lumbosacral strain status post decompressive laminectomy from 20 percent to 40 percent, effective October 8, 2019.  

The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5243.  Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation will be assigned for 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 20 percent is assigned for 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.

A 40 percent evaluation will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. 

A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. Id. 

A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. Id.

Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 

Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id.

Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. 

Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the service-connected lumbar spine disability. 

In order for a 50 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire thoracolumbar spine. In order for a 100 percent rating to be assigned, the evidence must establish unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 

The Board finds that a 40 percent evaluation is warranted for the entire period on appeal, but the medical evidence of record does not document unfavorable ankylosis of the spine. The Veteran’s low back symptoms have remained consistent throughout the entire period on appeal.  Significantly the June 2005 VA physical therapy consult note documented low back pain and stiffness.  The April 2018 VA back examination report indicated the Veteran had forward flexion to 75 degrees with no additional loss after repetitive use and did not have ankylosis of the spine.  The May 2018 VA back examination report indicated the Veteran had forward flexion to 50 degrees with pain noted on examination but with no additional loss after repetitive use.  He did not have ankylosis of the spine.  The October 2019 VA back examination report indicated the Veteran had forward flexion to 30 degrees on repetitive use testing, with pain and weakness noted on examination.  He did not have ankylosis of the spine.  The VA examination reports, and VA treatment records establish that the Veteran has limited motion of the lumbar spine, but there were no findings of ankylosis. Thus, on this basis, a rating in excess of 40 percent is not warranted under Diagnostic Codes 5235 to 5242.

The rating criteria are intended to take into account functional limitations; therefore, the provisions of 38 C.F.R. §§ 4. 40, 4.45, could not provide a basis for a higher evaluation. In any event, additional functional limitation warranting a higher evaluation is not been shown. The 40 percent rating was assigned on the basis of the additional limitation of forward flexion after repetitive motion. The Board finds that the 40 percent rating, but no higher for the entire appeal period for the lumbar spine disability contemplates the functional loss due to pain, weakness, fatigability, or incoordination caused by the lumbar spine disability. See 38 C.F.R. §§ 4. 40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

The Board finds that for the entire period on appeal, the criteria for a 40 percent evaluation, but no higher has been more nearly approximated under Diagnostic Code 5243.   However, a rating in excess of 40 percent under Diagnostic Code 5243 is not warranted during the period on appeal.  The evidence does not establish that the service-connected lumbar spine disability causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. The medical evidence of record does not support physician-prescribed bed rest, which is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Significantly, the October 2019 VA examination report indicated that the Veteran had diagnosed IVDS, but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  Thus, the Board finds that a disability evaluation in excess of 40 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. See April 2018, May 2018, October 2019 VA examination reports. 

For these reasons, the Board finds that the criteria for a 40 percent disability evaluation, but no higher for the entire period on appeal have been met; however, a rating in excess of 40 percent for the service-connected lumbar spine disability is not warranted at any time during the period on appeal.  

REASONS FOR REMAND

1. TDIU prior to October 8, 2019 

The Board notes that in a November 2019 rating decision, the AOJ granted entitlement to TDIU, effective October 8, 2019.  

However, the record contains conflicting information regarding the Veteran’s work history and earnings prior to October 8, 2019.  In this regard, on his March 2018 TDIU claim, the Veteran reported that his disability affected his full-time employment on January 1, 2004.  He reported that he last worked full-time in 2005.  See March 2018 VA Form 21-8940.  By contrasts, at his March 2019 DRO hearing, the Veteran testified he stopped working full-time at the Census Bureau in February 2010.  See March 2019 DRO hearing testimony at 6-7. 

On his May 2018 TDIU claim, the Veteran reported that he was still employed as a golf clubhouse attendance, working 15 hours per week during nice weather.  At his March 2019 DRO hearing, the Veteran’s representative testified that the Veteran has had marginal employment since August 8, 2011.  See March 2019 DRO hearing testimony at 3.  He further testified that he has been doing part-time work at a golf course since March 2010.  Id. at 6-7. 

As such, development is needed to ascertain information regarding the Veteran’s work history during the appeal period prior to October 8, 2019. 

The matter is REMANDED for the following action:

1. Obtain outstanding relevant VA treatment records and associate them with the claims file.

2. Send a VA Form 21-8940 (TDIU claim form) to the Veteran for completion by the Veteran.  The Veteran should provide updated information with his entire work history with dates of employment and earnings information for the period from June 9, 2005, to October 8, 2019. Then, upon receipt of the completed VA Form 21-8940, send VA Forms 21-4192 (Request for Employment Information in Connection with a Claim for Disability Benefits) to his former employers identified on any and all of the VA Form(s) 21-8940 of record.

3. Then, readjudicate the Veteran’s TDIU claim on appeal.  If any benefit sought on appeal remains denied, the Veteran and current representative should be provided a supplemental statement of the case.  Allow an appropriate period of time for response.

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Schick, Associate Counsel

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.