Citation Nr: 21003440 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 10-35 722 DATE: January 21, 2021 ORDER Entitlement to a 10 percent disability rating for bronchial asthma prior to July 12, 2012, and 30 percent thereafter, is granted. Entitlement to a compensable disability rating for status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis prior to June 28, 2012 and a disability rating in excess of 10 percent thereafter, is denied. Entitlement to a 20 percent disability rating for varicocele, left is granted. Entitlement to a 10 percent disability rating for status post right foot laceration with scar is granted. Entitlement to a compensable disability rating for verruca acuminata, penis and peri-rectal area is denied. FINDINGS OF FACT 1. Prior to July 12, 2012, the Veteran’s bronchial asthma caused an FEV-1 of 71 to 80 percent predicted. 2. From July 12, 2012, forward, the Veteran’s bronchial asthma caused an FEV-1/FVC of 56 to 70 percent. 3. Prior to June 28, 2012, the Veteran’s status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis did not manifest as forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees, 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. 4. From June 28, 2012, forward, the Veteran’s status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis manifested as forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, but not forward flexion greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 5. The Veteran’s varicocele caused awakening to void three to four times per night. 6. The Veteran’s status post right foot laceration with scar has manifested as painful. 7. The Veteran’s verruca acuminata, penis and peri-rectal area is manifested by an infection of the skin on less than 5 percent of unexposed areas of total body area, and no area of exposed skin, with no more than topical therapy required in the previous 12 month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent disability rating for bronchial asthma prior to July 12, 2012, and 30 percent thereafter, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6602. 2. The criteria for entitlement to a compensable disability rating for status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis prior to June 28, 2012 and a disability rating in excess of 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes 5299-5237. 3. The criteria for entitlement to a 20 percent disability rating for varicocele, left have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.115a, 4.115b; Diagnostic Code 7529. 4. The criteria for entitlement to a 10 percent disability rating for status post right foot laceration with scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7805, 7804. 5. The criteria for entitlement to a compensable disability rating for verruca acuminata, penis and peri-rectal area have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7819, 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision. A June 2016 rating decision assigned a 10 percent disability rating for the Veteran’s status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis, effective June 28, 2012. The Veteran’s claims for increased ratings were remanded by the Board for further development in September 2019. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Pursuant to the Board’s September 2019 remand directives, the Agency of Original Jurisdiction (AOJ) attempted to schedule the Veteran for examinations to evaluate the current severity of his service-connected disabilities. See January 2020 VA Administrative Note. However, the Veteran did not attend the scheduled examinations. To date, the Veteran has not provided good cause for his non-appearance or requested that his VA examinations be rescheduled. Under these circumstances, the Board finds that the Veteran failed to report for a VA examination without good cause. See 38 C.F.R. § 3.655 (requiring a showing of good cause for failure to appear before a VA examination is rescheduled); VAOPGCPREC 4-91 (Feb. 13, 1991) (reflecting that, absent a showing of good cause, a Veteran’s refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655). The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (further holding that “[i]f a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence”); see also Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992); Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (reflecting that any failure to appear for or cooperate during a VA examination “subjects [the Veteran] to the risk of an adverse adjudication based on an incomplete and underdeveloped record”). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. §§ 3.655(a), (b) Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  1. Entitlement to a 10 percent disability rating for bronchial asthma prior to July 12, 2012, and 30 percent thereafter, is granted. The Veteran’s bronchial asthma has been rated as noncompensable under Diagnostic Code 6602. 38 C.F.R. § 4.97. For the reasons discussed below, the Board finds that a 10 percent disability rating is warranted for the Veteran’s bronchial asthma prior to July 12, 2012 and 30 percent thereafter. Under Diagnostic Code 6602, a 10 percent disability rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97. A 30 percent disability rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. Id. A 60 percent disability rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Id. A 100 percent disability rating is warranted for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. Post-bronchodilator studies are required when Pulmonary Function Tests are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on Pulmonary Function Tests, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different Pulmonary Function Tests (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Turning to the evidence of record, an October 2008 diagnostic study of the Veteran’s chest revealed that his pulmonary vasculature is unremarkable, there are no segmental infiltrates are seen and no focal areas of atelectasis and there is no finding of pneumothorax, and his lungs are hyperinflated and the diaphragms are flat. An October 2008 Examination provides that the Veteran has a cough with purulent sputum and shortness of breath after walking three city blocks because of his respiratory disability. He does not have loss of appetite, hemoptysis, or a daily cough with blood-tinged sputum and orthopnea. He states he has asthmatic attacks yearly and he does not need to visit a physician to control the attacks. The Veteran does not contract infection easily from his respiratory condition and he has had no episodes of respiratory failure requiring respiration assistance from a machine. He is not receiving any treatment for his condition. In particular, he does not require the usage of outpatient oxygen therapy. The Veteran reports that he does not experience any functional impairment from this condition. The October 2008 examination report shows that the Veteran’s Pulmonary Function Test demonstrated pre-bronchodilator of FEV-1 of 63 percent predicted, FVC 69 percent predicted, and FEV1/FVC 90 percent predicted. Testing post-bronchodilator showed FEV-1 of 80 percent predicted, FVC of 79 percent predicted. The interpretation states that the Veteran’s FVS is mild to moderately reduced, FEV-1 is moderately reduced, and FEV1/FVS is moderately reduced, and flows are more reduced at lower lung volumes. Pursuant to 38 C.F.R. § 4.96(d)(5), post-bronchodilator results are used in applying the evaluation criteria. The Veteran was also afforded a VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire in June 2012. The examination report indicates that the Veteran does not have an inhaler and that is he afraid to use an inhaler because he had a severe headache after use. The Veteran’s symptoms are most severe during the spring and fall and sometimes he has shortness of breath ascending stairs. At times, the Veteran has to sleep in his reclining chair to breathe well. He smokes one half pack of cigarettes per day. The June 2012 examination report states that the Veteran’s asthma does not require the use of oral, parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months or physician visits for required care of exacerbations. A June 2012 chest X-ray did not show cardiopulmonary disease. The June 2012 examination report shows that the Veteran’s Pulmonary Function Test demonstrated pre-bronchodilator of FEV-1 of 63 percent predicted, FVC 69 percent predicted, and FEV1/FVC 63 percent. Testing post-bronchodilator showed FEV-1 of 80 percent predicted, FVC of 79 percent predicted, FEV1/FVC 71 percent. The examiner stated that the FEV-1/FVC test result most accurately reflects the Veteran’s level of disability. Therefore, the Board uses the FEV-1/FVC test result to evaluate the severity of the Veteran’s bronchial asthma. 38 C.F.R. § 4.96(d)(6). In terms of functional impairment, the Veteran missed several days of work within the past year due to wheezing. A July 2012 VA Pulmonary Function Test demonstrated pre-bronchodilator of FEV-1 of 55 percent predicted, FVC 65 percent predicted, and FEV1/FVC 64 percent. Testing post-bronchodilator showed FEV-1 of 85 percent predicted, FVC of 87 percent predicted, FEV1/FVC 68 percent. The examiner stated that the FEV-1/FVC test result most accurately reflects the Veteran’s level of disability. Thus, the Board uses the FEV-1/FVC test result to evaluate the severity of the Veteran’s bronchial asthma. 38 C.F.R. § 4.96(d)(6). In sum, prior to July 12, 2012, the Veteran’s Pulmonary Function Tests results met the criteria for a 10 percent disability rating, but not higher, for his bronchial asthma. In particular, the evidence during this time period showed the Veteran’s post-bronchodilator FEV-1 of 80 percent predicted. Further, the evidence did not indicate that the Veteran had a FEV-1 of 56- to 70-percent predicted, FEV-1/FVC of 56 to 70 percent, or that his bronchial asthma required the use of daily inhalational, oral bronchodilator therapy, or inhalational anti-inflammatory medication. 38 C.F.R. § 4.96, Diagnostic Code 6602. From July 12, 2012, forward, the Veterans’ Pulmonary Function Tests results met the criteria for a 30 percent disability rating, but not higher, for his bronchial asthma. During this time periods, the Veteran had a post-bronchodilator FEV1/FVC of 68 percent. The evidence does not demonstrate that the Veteran had an FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.96, Diagnostic Code 6602. To conclude, the preponderance of the evidence weighs in favor of assignment of a 10 percent disability rating, but not higher, for the Veteran’s bronchial asthma prior to July 12, 2012. Additionally, the preponderance of the evidence weighs in favor of assignment of a 30 percent disability rating, but not higher, from July 12, 2012, thereafter. Consequently, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. §§ 1155, 5107; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to a compensable disability rating for status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis prior to June 28, 2012 and a disability rating in excess of 10 percent thereafter, is denied. The Veteran’s status post compression fracture, L-3 with degenerative joint disease and dextroscoliosis has been rated as noncompensable prior to June 28, 2012 and 10 percent disabling thereafter under 38C.F.R. §4.71a, Diagnostic Code 5299-5237. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. See 38 C.F.R. § 4.27. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).  The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint).  However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40).  Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354.  The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.  It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint.  In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.  The rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is 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. A 20 percent rating 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. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. This is because the criteria “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51, 454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under Diagnostic Code 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases 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, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a (Diagnostic Code 5243). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a Note (1). Turning to the evidence at hand, an October 2008 diagnostic study noted rotary dextroscoliosis and the arm has moderate degenerative changes. There may be minimal superior loss of height of the L3 vertebral body and that this is likely to be old as some reparative changes appear to be present. The Veteran’s disc space narrowing is primarily seen at L3-L4 and what is seen of the sacroiliac joints and of the sacrum and coccyx appears unremarkable. The Veteran has some sclerosis at the apophyseal joints of L4-L5 and L5-S1. The October 2008 Examination indicates that the Veteran reports stiffness and numbness related to his low back disability. He has no loss of bladder control or loss of bowel control. He reports pain in the low back that occurs three to four times per month and that lasts for one to two hours at a time. The examination report provides that the Veteran describes his pain as burning, aching, and sharp. He rates his pain level as a 6 out of 10. The pain can be elicited by physical activity and stress, is relieved by rest and by Ibuprofen, and he can function with medication. The Veteran is not receiving any treatment for his condition. He states his condition has not resulted in any incapacitation. In terms of functional impairment, his low back disability has forced him to use sick leave. The October 2008 examination report states that the Veteran’s gait is within normal limits and he does not require any assistive device for ambulation. On physical examination of the Veteran’s thoracolumbar spin, he does not have any evidence of radiating pain on movement. Muscle spasm is absent, and no tenderness is noted. There is negative straight leg raising test bilaterally and there is no ankylosis of the lumbar spine. In terms of range of motion testing, the October 2008 examination report states that the Veteran has flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right rotation to 30 degrees, and left rotation to 30 degrees. The joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use according to the examination report. There is normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. The examination report provides that there are no signs of Intervertebral Disc Syndrome with chronic and permanent nerve root involvement. The Veteran was also afforded a June 2012 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The Veteran states that he has flare-ups of severe back pain that occur twice per month, are rated as a 4-7 out of 10 in severity, lasts for one to two days, and are alleviated with stretching. Initial range of motion testing showed the Veteran with flexion to 70 degrees with painful motion beginning at 50 degrees, extension to 15 degrees with painful motion beginning at 5 degrees, right lateral flexion to 15 degrees with painful motion beginning at 10 degrees, left lateral flexion to 15 degrees with painful motion beginning at 10 degrees, right lateral rotation to 10 degrees with painful motion at 10 degrees, and left lateral rotation to 10 degrees with painful motion at 10 degrees. On repetitive use testing, the Veteran had flexion to 80 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The June 2012 examination report states that the Veteran has additional limitation in range of motion of the thoracolumbar spine following repetitive use testing and he has functional loss of the thoracolumbar spine described as less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weightbearing. The Veteran does not have localized tenderness or pain to palpation for joints and/or soft tissue or guarding or muscle spasm of the thoracolumbar spine. The Veteran had normal muscle strength testing. There was no muscle atrophy. Deep tendon reflexes and the sensory examination were normal. Straight leg raising test was normal bilaterally. The Veteran does not have Intervertebral Disc Syndrome. He does not use an assistive device. The June 2012 examination report states that the Veteran showed moderate right lower extremity intermittent pain and paresthesias and/or dysesthesias as signs due to radiculopathy. The severity of the Veteran’s right radiculopathy was noted as moderate. Related, the Board notes that a June 2016 rating decision granted service connection for radiculopathy, right lower extremity and assigned a 20 percent disability rating, effective June 28, 2012. The June 2012 examination report states that diagnostic studies show that the Veteran has arthritis and a vertebral fracture and has 10 percent loss of vertebral body. In terms of functional impact, Veteran has difficulty walking in a straight line. When his back pain flares, he has to sit in a specific chair for support. He is unable to run, jump, or jog. He has not missed work for back pain. A June 2013 narrative completed by D.M., an orthopedic surgeon, advised that the Veteran has band-like low back pain that occasionally radiates into his buttocks and is worsened by bending and lifting. A February 2014 private diagnostic study shows that there is loss of signal and height of the L3-L4 and L5-S1 intervertebral disc. There are multilevel endplate degenerative changes and there is mild loss of height of the L3 vertebral body likely representing chronic fracture. At L2/L3 there is broad-based disc bulge eccentric to the right, mild facet atrophy, and ligamentum flavum thickening without evidence of neural foraminal or spinal canal stenosis. At L3/L4 there is moderate facet arthropathy results in mild bilateral neural foraminal stenosis. An August 2014 private diagnostic study provides an impression of multilevel degenerative changes most pronounced at L3-L4 where there is severe disc space narrowing. The Veteran has a chronic compression fracture with less than 25 percent loss of vertebral body height. There is no spondylolisthesis or fracture. He has very limited mobility with flexion and extension. In sum, prior to June 28, 2012, at worst, the Veteran’s range of motion testing showed normal range of motion testing. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). There is no evidence that the Veteran had forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, 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. While the Veteran described his back pain as burning, aching, and sharp, the evidence indicates that he had no additional functional loss on repetitive use testing. Thus, the preponderance of the evidence does not support a compensable disability rating under Diagnostic Codes 5299-5237 prior to June 28, 2012. See 38 C.F.R. § 4.40, 4.45; DeLuca, 8 Vet. App. 202. As such, the benefit-of-the-doubt rule does not apply. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert, 1 Vet. App.at 55-57. From June 28, 2012, at worst, the Veteran’s initial range of motion testing showed flexion to 70 degrees and combined range of motion to 135 degrees. Repetitive use range of motion testing showed flexion to 80 degrees and combined range of motion to 140 degrees. Further, while the Veteran has additional limitation in range of motion of the thoracolumbar spine following repetitive use testing and he has functional loss of the thoracolumbar spine as described above, his loss of range of motion did not rise to the level of satisfying the criteria for a 20 percent disability rating. Thus, the preponderance of the evidence does not support a disability rating in excess of 10 percent under Diagnostic Codes 5299-5237 from June 28, 2012, forward. See 38 C.F.R. § 4.40, 4.45; DeLuca, 8 Vet. App. 202. Again, the benefit-of-the-doubt rule does not apply. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert, 1 Vet. App.at 55-57. A separate 10 percent disability rating under Diagnostic Code 5003 for arthritis of the thoracolumbar spine may not be assigned, as this would result in compensating twice for manifestations of the same disability, in violation of the rule against pyramiding. 38 C.F.R. § 4.14. A 20 percent disability rating may not be assigned under Diagnostic Code 5003 as the Veteran’s thoracolumbar spine arthritis does not involve two or more major joint groups or two or more minor joint groups with occasional incapacitating exacerbations. The Veteran has not been diagnosed with intervertebral disc syndrome. Therefore, the criteria for a compensable disability rating under the Formula for Rating IVDS have not been satisfied. 3. Entitlement to a 20 percent disability rating for varicocele, left is granted. The Veteran’s varicocele, left has been rated as noncompensable under Diagnostic Code 7529. Benign neoplasms of the genitourinary system are rated as if it were either voiding dysfunction or renal dysfunction under 38 C.F.R. § 4.115a, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7529. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Evaluation under urine leakage involves disability ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent disability rating is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent disability rating contemplates a daytime voiding interval less than one hour or awakening to void five or more times per night. A 20 percent disability rating contemplates daytime voiding interval between one and two hours or awakening to void three to four times per night. A 10 percent disability rating contemplates daytime voiding interval between two and three hours or awakening to void two times per night. 38 C.F.R. § 4.115a. Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent disability rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc’s); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc’s per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 38 C.F.R. § 4.115a. Renal dysfunction manifested by constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent disability rating. Renal dysfunction resulting in albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent disability rating. Renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants an 80 percent evaluation. Finally, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent evaluation. 38 C.F.R. § 4.115a. An October 2008 Examination provides that during the day the Veteran urinates three times at intervals of two to three hours and during the night he urinates three times at intervals of two to three hours. He has problems starting urination and his urine flow is hesitant. He does not have any urinary incontinence. He reports no impotence. The Veteran does not experience any functional impairment from this condition. The Veteran was also provided a June 2012 Male Reproductive System Conditions Disability Benefits Questionnaire. The examination report states that currently, the Veteran is asymptomatic with good support and he denies any change in his left testicle appearance or size. The Veteran’s treatment plan does not include taking continuous medication for his diagnosed condition. He has not had an orchiectomy. He has voiding dysfunction, but it does not cause urine leakage or require the use of an appliance and its etiology is unknown. The voiding dysfunction causes increased urinary frequency as he has a daytime interval between two and three hours and nighttime awakening to void three to four times. The voiding dysfunction does not cause signs or symptoms of obstructed voiding. The June 2012 examination report states that the Veteran does not have a history of recurrent symptomatic urinary tract or kidney infections, erectile dysfunction, retrograde ejaculation, chronic epididymitis, epididymo-orchitis, prostatitis. The Veterans’ disability does not impact his ability to work. Here, the evidence demonstrates that the Veteran’s varicocele, left manifests predominantly as voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7529. In particular, the Veteran’s varicocele, left, is productive of increased urinary frequency. 38 C.F.R. § 4.115a. The October 2008 examination report provides during the night, the Veteran urinates three times at intervals of two to three hours. The June 2012 examination report states that the Veteran has nighttime awakening to void three to four times. There is no evidence that the Veteran’s varicocele, left causes daytime voiding interval less than one hour or awakening to void five or more times per night. Id. Therefore, the preponderance of the evidence demonstrates that the severity of the Veteran’s varicocele satisfies a 20 percent disability rating, but not higher. 38 C.F.R. § 4.115a. As such, the benefit-of-the-doubt rule does not apply. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert, 1 Vet. App.at 55-57. 4. Entitlement to a 10 percent disability rating for status post right foot laceration with scar is granted. The Veteran’s status post right foot laceration with scar has been assigned a noncompensable disability rating under Diagnostic Code 7805 for the entire appellate period. For the reasons discussed below, a 10 percent disability rating, but not higher, is warranted. In general, scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Diagnostic Code 7800 provides ratings for scars of the head, face, and neck. The Board notes that the schedule for rating disabilities applicable to the skin was recently amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Claims pending prior to the effective date of the new rating criteria will be considered under both the old and new criteria, and whatever criteria is more favorable to the Veteran will be applied. Id. However, particularly relevant to this matter, no changes were made to Diagnostic Codes 7804 and 7805, and no other diagnostic code was added that would be applicable to the Veteran's scars. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. § § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 states that other scars, including linear scars, and any disabling effect(s) for scars rated under diagnostic codes 7800, 7801, 7802, and 7804, which are not considered in a rating provided under diagnostic codes 7800-7804 should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. 38 C.F.R. § 4.118(a) now indicates that systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. In Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit found that some applications of topical corticosteroids may constitute systemic therapy under Diagnostic Code 7806. The Federal Circuit made clear that this determination should be made based on the facts of each individual case. See also Burton v. Wilkie, 30 Vet. App. 286 (2018). Turning to the evidence, the October 2008 Examination indicates that the Veteran reported symptoms of tenderness and pain associated with his scar. On physical examination, the Veteran’s scar was described as present at the plantar surface of his right foot measuring about 4.0 centimeters by 0.2 centimeters. There is tenderness, but no disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation and abnormal texture. There are no burn scars present, scars present on the face, and no nodules, lumps or cysts present on examination. The Veteran was also afforded a June 2012 VA Scars/Disfigurement Disability Benefits Questionnaire. The examination report states that the Veteran does not have any scars of the head, face, or neck. He also does not have any scars of the trunk or extremities that are painful or unstable, with frequent loss of covering of the skin over the scar. The Veteran’s scar is not related to burns. In particular, the Veteran has one superficial non-linear scar that measures 2 centimeters in length by 0.2 centimeters in width to his right lower extremity. The Veteran’s scar covers an approximate total area of 0.4 square centimeters. The Veteran’s scar does not cause any limitation of function. Thus, the Board finds that a 10 percent disability rating is warranted under Diagnostic Code 7804, for one scar that is painful. See October 2008 Examination Report. The Board also finds that a compensable disability rating is not warranted for the Veteran’s status post right foot laceration with scar under a separate Diagnostic Code. Diagnostic Code 7800 is not applicable because the service-connected disability does not affect the head, face or neck. Diagnostic Code 7801 is not applicable because there is no evidence that the Veteran’s status post right foot laceration with scar is associated with underlying soft tissue damage and does not cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Diagnostic Code 7802 is not applicable because there is no evidence that the Veteran’s status post right foot laceration with scar covers an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran’s scar has not been shown to have any other disabling effects. Consequently, the benefit-of-the-doubt rule does not apply, and a 10 percent disability rating is granted. See 38 U.S.C. §§ 1155, 5107; Gilbert, 1 Vet. App. at 55-57. 5. Entitlement to a compensable disability rating for verruca acuminata, penis and peri-rectal area is denied. The Veteran is in receipt of a noncompensable disability rating for his verruca acuminata, penis and peri-rectal area. His disability has been evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7819. Diagnostic Code 7819 contemplates benign skin neoplasms, and directs that the disability be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or impairment of function. The Board finds that a compensable disability rating is not warranted for the reasons discussed below. Under Diagnostic Code 7806, a noncompensable rating is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, and; no more than topical therapy is required during the past 12-month period. A 10 percent disability rating is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Again, the Board notes that the schedule for rating disabilities applicable to the skin was recently amended effective August 13, 2018. The Board will apply whatever criteria is more favorable to the Veteran. The evidence contained in the Veteran’s claims folder demonstrates that he was afforded an October 2008 Examination. The examination report states that the Veteran describes his symptoms as wart like lesions. He is not receiving any treatment for his condition and he does not report any associated functional impairment. The Veteran’s disability was described as non-symptomatic and non-active. The Veteran was also provided a June 2012 VA Skin Diseases Disability Benefits Questionnaire. The Veteran sought medical attention when he noticed skin changes on his penis and was diagnosed with verruca acuminatum and he also developed lesions perirectally. The examination report provides that the Veteran does not have a skin condition that causes scarring or disfigurement of the head, face, or neck and he does not have any benign or malignant skin neoplasms. The Veteran also does not have any systemic manifestations due to any skin diseases. He has not been treated with oral or topical medications in the past 12 months for any skin condition and has not received any other treatment for exfoliative dermatitis or papulosquamous disorders. The Veteran has not had any debilitating episodes or non-debilitating episodes relating to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The June 2012 examination report demonstrates that the Veteran has infections of the skin that cover less than 5 percent of his total body area and no exposed body area. He does not have a benign or malignant neoplasm or metastases related to any diagnoses. His skin condition does not impact his ability to work. Accordingly, the Board finds that the Veteran’s verruca acuminata, penis and peri-rectal area approximates the schedular criteria under Diagnostic Code 7806 for a noncompensable disability rating because his verruca acuminata, penis and peri-rectal area manifested in an infection of the skin affecting less than 5 percent of the entire body, less than 5 percent of exposed areas, and he did not receive more than topical therapy as treatment. There is no evidence that the Veteran’s verruca acuminata, penis and peri-rectal area affected 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas, or it required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. (Continued on the next page)   The Board also finds that a compensable disability rating is not warranted for the Veteran’s verruca acuminata, penis and peri-rectal area under a separate Diagnostic Code. Diagnostic Code 7800 is not applicable because the service-connected disability does not affect the head, face or neck. Diagnostic Code 7801 is not applicable because there is no evidence that the Veteran’s verruca acuminata, penis and peri-rectal area is associated with underlying soft tissue damage and does not cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Diagnostic Code 7802 is not applicable because there is no evidence that the Veteran’s verruca acuminata, penis and peri-rectal area covers an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7804 is not applicable because there is no evidence that the Veteran’s verruca acuminata, penis and peri-rectal area is painful or unstable. The preponderance of the evidence weighs against a finding that the Veteran’s verruca acuminata, penis and peri-rectal area warrants a compensable disability rating. Consequently, the benefit-of-the-doubt rule does not apply, and compensable disability rating is denied. See 38 U.S.C. §§ 1155, 5107; Gilbert, 1 Vet. App. at 55-57. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.