Citation Nr: 21003772
Decision Date: 01/22/21	Archive Date: 01/22/21

DOCKET NO. 10-33 443
DATE: January 22, 2021

ORDER

Entitlement to service connection for right lower extremity radiculopathy as secondary to service-connected status post T12 compression fracture is granted. 

Entitlement to an initial rating in excess of 20 percent for status post compound comminuted fracture, left mandible is denied.

Entitlement to an initial rating in excess of 10 percent prior to July 28, 2016 for a scar of the left chin and neck is denied.

From July 28, 2016 onward, an initial rating of 50 percent for a scar of the left chin and neck is granted, subject to the rules and regulations governing the payment of VA monetary benefits.

Entitlement to an initial rating in excess of 10 percent for a status post T12 compression fracture is denied.

Entitlement to an initial compensable rating prior to November 22, 2015, and in excess of 10 percent thereafter, for lower left extremity sciatic nerve paralysis is denied.

Entitlement to an initial rating in excess of 10 percent for a status post right index finger shrapnel injury is denied.

Entitlement to an initial rating in excess of 10 percent for a right knee disorder is denied.

Entitlement to an initial rating in excess of 10 percent for a left knee disorder is denied.

Entitlement to an initial compensable rating for a bilateral toenail fungus is denied.

Entitlement to an initial rating in excess of 10 percent prior to October 16, 2018 and a compensable rating thereafter for bilateral hearing loss is denied.

FINDINGS OF FACT

1. The Veteran’s right lower extremity incomplete paralysis is caused by the Veteran’s service-connected status post T12 compression fracture. 

2. Throughout the period on appeal, the Veteran’s service-connected status post compound comminuted fracture, left mandible has not been manifested by limited motion of inter-incisal range of 11 millimeter (mm) to 20mm.

3. Prior to July 28, 2016, the Veteran’s chin and neck scar is not observed to have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. 

4. From July 28, 2016 onward, the Veteran’s chin and neck scar is observed to have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features, specifically the chin; to be at least one-quarter inch (0.6 cm) wide; have surface contour depressed on palpation; underlying soft tissue missing; hypopigmentation; and abnormal texture.

5. Considering the complaints of pain, the Veteran’s status post T12 compression fracture has not resulted in forward flexion 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.

6.  Prior to November 22, 2015, the Veteran is not observed to have mild incomplete paralysis of the left lower extremity.

7. From November 22, 2015 onward, the Veteran’s left lower extremity incomplete paralysis is observed to be mild. 

8. The Veteran’s status post right index finger shrapnel injury causes no more than moderate muscle impairment to Muscle Group VII.

9. The Veteran’s right knee disorder is manifested by pain; no ankylosis; no evidence of range of motion in flexion limited to 30 degrees or extension to 15 degrees; no evidence of instability; and no evidence of “locking” and joint effusion.

10. The Veteran’s left knee disorder is manifested by pain; no ankylosis; no evidence of range of motion in flexion limited to 30 degrees or extension to 15 degrees; no evidence of instability; and no evidence of “locking” and joint effusion.

11. Throughout the period on appeal, the Veteran’s service-connected bilateral toenail fungus has not been manifested 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 be affected; or intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period; or, at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but not less than 20 percent of exposed areas affected; or intermittent systemic therapy, including but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 

12. For the appeal period from October 1, 2008 to October 16, 2018, the Veteran had, at worst, Level I hearing for the right ear and Level III for the left ear.

13. For the appeal period since October 16, 2018, the Veteran has, at worst, Level II hearing for the right ear and Level III for the left ear.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right lower extremity sciatic nerve paralysis as secondary to service-connected status post T12 compression fracture are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for a rating in excess of 20 percent for status post compound comminuted fracture, left mandible have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.150, Diagnostic Code 9905.

3. Prior to July 28, 2019, the criteria for a rating in excess of 10 percent for chin and neck scarring were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7800.

4. From July 28, 2019 onward, the criteria for a rating of 50 percent for chin and neck scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7800.

5. The criteria for an initial rating in excess of 10 percent for a status post T12 compression fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5235.

6. Prior to November 22, 2015, the criteria for a compensable rating for left lower extremity sciatic nerve paralysis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

7. From November 22, 2015 onward, the criteria for a rating in excess of 10 percent for left lower extremity sciatic nerve paralysis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

8. The criteria for an initial rating in excess of 10 percent for service-connected status post right index finger shrapnel injury have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5307. 

9. The criteria for an initial rating in excess of 10 percent for service-connected right knee disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263.

10. The criteria for an initial rating in excess of 10 percent for service-connected left knee disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263.

11.  The criteria for an initial compensable rating for service-connected bilateral toenail fungus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. 

12. The criteria for an initial rating in excess of 10 percent prior to October 16, 2018 and a compensable rating thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1985 to September 2008.  His awards and decorations include the Combat Infantryman Badge.

These matters were remanded by the Board in July 2014 and July 2018 for further development and have since been returned to the Board for appellate review.  There was substantial compliance with these remand directives for the remaining issues on appeal discussed below.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, the Veteran was notified in May 2016 and May 2019 letters to identify any outstanding treatment records and/or private health care providers in order for VA to obtain any outstanding relevant treatment records, additional VA treatment records were obtained and associated with the claims file including audiological evaluation reports dated in April 2013, May 2013, and July 2015, and the Veteran was afforded VA examinations in November 2015, July 2016, October 2018, May 2019, July 2019, and October 2019.  These issues were also readjudicated in September 2016 and June 2020 supplemental statements of the case (SSOCs). 

For the remaining issues decided below, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1. Service connection for right lower extremity radiculopathy 

Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two.

The October 2019 VA peripheral nerve examiner observed that the Veteran experiences constant pain, that may be excruciating at times, in the right lower extremity that is mild. The examiner indicated the Veteran experiences mild incomplete paralysis on the right sciatic nerve. The examiner stated the Veteran has a new diagnosis of right lower extremity radiculopathy and stated that this new diagnosis is related to the Veteran’s service-connected back disorder. 

As the October 2019 VA examiner found the Veteran’s right lower extremity radiculopathy to be caused by the service-connected back disorder, and there is no conflicting medical evidence, the Board finds that the Veteran’s right lower extremity radiculopathy is secondary to the Veteran’s status post T12 compression fracture. Therefore, the Board finds that service connection for right lower extremity radiculopathy is warranted on a secondary basis. See 38 C.F.R. § 3.310. Therefore, service connection for right lower extremity radiculopathy is granted.

Higher Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will also consider entitlement to staged ratings to compensate for times since receipt of the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Board is also required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

2. Entitlement to an initial rating higher than 20 percent for status post compound comminuted fracture, left mandible, is denied.

The Veteran asserts that his service-connected status post compound comminuted fracture, left mandible is more disabling than reflected by the rating currently assigned. 

The Veteran’s left mandible fracture is rated under 38. C.F.R. 4.150, Diagnostic Code 9999-9905.  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.  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.  38 C.F.R. § 4.27.

The criteria under Diagnostic Code 9905 were amended effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36,080 (August 3, 2017).

Under the prior version of Diagnostic Code 9905, limitation of motion of the temporomandibular joint warrants a 20 percent evaluation where interincisal range is limited from 21 to 30 mm.  A 30 percent evaluation is warranted where interincisal range is limited from 11 to 20 mm.  The maximum 40 percent evaluation is warranted where interincisal range is limited from 0 to 10 mm. A note provided that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2016).

Under the amended version of Diagnostic Code 9905, a 10 percent rating is warranted when range of lateral excursion is limited to between 0 and 4 millimeters, or when interincisal range is limited to 30 to 34 mm without dietary restrictions to mechanically altered foods. Ratings in excess of 10 percent are warranted when there is interincisal range limited to less than 30 to 34 mm with dietary restrictions to mechanically altered foods, or when there is interincisal range limited to 29 mm or less, with or without dietary restrictions to mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2019).

Notes to the amended version of Diagnostic Code 9905 state that ratings for limited interincisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant evaluation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. 38 C.F.R. § 4.150, Diagnostic Code 9905, Notes (1), (2), and (3) (2019). 

On the July 2008 VA examination, the Veteran stated that his fractured jaw caused facial numbing. The examiner stated that the Veteran had difficulty in chewing solid foods but had no difficulty in opening and closing his mouth.  

On the July 2009 notice of disagreement (NOD), the Veteran stated that he had numbness on the left side of the jaw and lower lip because of nerve damage. He stated that the jaw disorder had caused him to eat food on the right side of his mouth. 

In July 2009 a private provider observed the Veteran’s temporomandibular articulation to be 30 mm. The medical provider also indicated the Veteran had swelling of the left cheek, and decreased sensation of the left jaw up to the middle of the upper and lower lips. 

In a July 2009 statement, the Veteran indicated that his jaw disorder caused numbness to the left side of his face and the left side of his lower lips, and that he had not had feeling in this area since the in-service surgery. 

In his July 2010 substantive appeal, the Veteran stated he had not had feeling in his jaw since the in-service injury in 1992. He stated the numbness had been constant and is uncomfortable when touched. 

On the November 2015 VA dental and oral conditions examination, the examiner indicated that the Veteran had a fracture in the mandible. The Veteran stated that his left lower lip was numb on the left half; a zone of skin below the lip was numb from the midline down to the chin and following a line along the jaw line almost 7 centimeter (cm); and the entire area was triangular with the base of the triangle being the line from the middle of the lower lip down to the middle of the chin. The Veteran stated that the numbness was more profound but was getting less numb and more normal over the years. The Veteran stated he had no trouble speaking, eating or working. The examiner observed the Veteran to have a scar parallel to the jaw line just under the skin of the mandible and the scar was in the neck and is about 7 cm long and 1 mm wide. The examiner stated the entire area of numbness, not the scar, was a triangle about 4 cm by 5.5 cm by 6.5 cm. The examiner observed the Veteran’s scar to not be painful or unstable.

The November 2015 VA examiner indicated the Veteran had a mandible disorder and other dental or oral conditions. Maximum incisal opening was 50 mm.  Right lateral excursion was 7 mm and left lateral excursion was 7.5 mm. All jaw movements were noted to be good.  

On VA temporomandibular disorder (TMDS) examination in October 2019, the examiner indicated a diagnosis of status post compound comminuted fracture of the left mandible. The Veteran stated that his symptoms had worsened during the past year. He stated he experiences numbness to the lip to the right side of the mandible. The Veteran stated he does not experience flare-ups and he does not experience any functional loss or functional impairment. Physical examination revealed range of motion to be inter-incisal distance greater than 34 mm; right lateral excursion greater than 4 mm; and left lateral excursion greater than 4 mm. The examiner did not observe any pain on examination. Also, the examiner found there to be no objective evidence of pain on passive range of motion or in non-weight bearing. There was no additional loss of function or motion after repeated use. There was no pain, weakness, fatigability, or incoordination that limited functional ability with flare-ups. The examiner indicated that the Veteran did not require a mechanically altered food diet.

Upon review of the record, the Board finds that a rating in excess of 20 percent for residuals of a left mandible fracture is not warranted.  To obtain a higher rating, it is necessary to show limitation of motion of inter-incisal range of 11 to 20 mm.  Here, however, the Veteran interincisal articulation, at worst, is noted to be 30 mm.  Moreover, he is not shown to require mechanically altered foods as the result of this disability.  Thus, the Board finds that a higher rating is not warranted for the Veteran’s residuals of the left mandible fracture at any time during the appeal period. 

The Board has also considered whether the application of another Diagnostic Code would potentially warrant a higher rating in excess of 20 percent. However, there is no evidence of loss or malunion of the mandible, maxilla, or other bones in the mouth related to the Veteran’s fractured mandible residuals. Here, the Board notes a November 2015 and October 2019 VA examinations are absent of these findings. Thus, the Veteran does not have symptoms contemplated by other rating criteria pertinent to the disability on appeal. 38 C.F.R. § 4.150, Codes 9900-9915.

The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, because the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

3. Entitlement to an initial rating in excess of 10 percent prior to July 28, 2016, and 30 percent thereafter for a scar of the left chin and neck 

The Veteran asserts that the scar on his chin and neck is productive of more severe impairment than currently rated. 

By a rating decision dated in May 2009, the regional office (RO) granted service connection for scarring of the left chin and neck and assigned a 10 percent rating pursuant to Diagnostic Code 7800, due to the scar having one characteristic of disfigurement. In a rating decision dated September 2016, the RO granted an increased rating and assigned a 30 percent rating due to the scar having visible palpable tissue loss and either gross distortion or asymmetry of one feature or paired of features. 

The rating schedule for evaluating scars was revised and amended in 2008. See 73 Fed. Reg. 54708-12 (Sept. 23, 2008). The effective date of the revisions is October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Because the Veteran submitted an application for benefits in May 2008 and separated from service in September 2008, the revised criteria will be applied in his case.

The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Here, the 2018 revisions do not apply as the Veteran’s chin and neck scar is rated under Diagnostic Code 7800, which was not revised in 2018. 

Diagnostic Code 7800 rates scars due to burns of the head, face or neck, scars of the head; face or neck due to other causes; or, other disfigurement of the head, face or neck. Pursuant to Diagnostic Code 7800, a 10 percent rating is warranted if the scar has one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (noses, chin, forehead, eyes, ears, cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four of five characteristics of disfigurement. An 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or pared sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. 

Note (1), following the criteria defines the eight characteristics of disfigurement, for purposes of evaluation, under § 4.118, are: Scar 5 or more inches (13 or more centimeters (cm)) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or-hyper-pigmented in an area exceeding six square inches (39 squared (sq.) cm); skin texture abnormal (irregular, atrophic, shine, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 

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

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

Additionally, Diagnostic Code 7804 rates scars based upon being unstable or painful. Pursuant to Diagnostic Code 7804, a 10 percent rating is warranted if there are one or two scars that are unstable or painful. A 20 percent rating is warranted if there are three or four scars that are unstable or painful. And a 30 percent rating is warranted if there are five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804.  

A note, following the criteria, defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

Note (3) following the criteria states that scars evaluated under diagnostic code 7800 may also receive an evaluation under this diagnostic code when applicable. 

On the July 2008 VA examination, the examiner indicated that the scar on the Veteran’s left neck was approximately four inches long and 1/8 inches in diameter. The examiner stated that the scar was slightly tender to palpation and there was no adherence to the underlying tissues. However, the examiner did not find there to be scaling atrophy or shotty skin on the scar area. The examiner observed the scar to have minimal elevation. The scar is the same color as the skin and there was no inflammation or edema of the scarred area. Also, the examiner stated the scar did not cause limitation of motion in the area. The examiner stated the scar was associated with the Veteran’s facial numbness in the left facial area effecting the left face and the lips. The examiner stated the scar was stable. 

In his July 2009 NOD, the Veteran stated the scar tissue on the left side of his face was swollen, giving his face the appearance of being lopsided. 

On a July 2009 private treatment record, the medical provider observed the Veteran to have a scar on the neck that was 3 inches long and 1/2 inch wide. The medical provider also indicated that the Veteran had swelling of the left cheek.

In a July 2009 statement, the Veteran stated that scar on his neck and the swelling due to the scar tissue hardening, had caused his face to look abnormal and swollen. 

On the July 2010 substantive appeal, the Veteran stated that he had a scar on his face and neck that caused swelling and deformity. 

On the November 2015 VA dental and oral conditions examination, the examiner observed the Veteran to have a scar parallel to the jaw line just under the skin of the mandible that was about 7 cm long and 1 mm wide. The examiner stated the entire area of numbness, not the scar, was a triangle about 4 cm by 5.5 cm by 6.5 cm. The examiner indicated that the scar was not painful or unstable. 

On the July 28, 2016 VA scar examination, the examiner indicated the Veteran had a tender scar on the neck with localized numbness. The Veteran stated that his scar itched and caused facial disfigurement on the left side of the jaw, making the chin area look droopy. He stated there was also numbness in the area of the scar. The examiner indicated the scar was not unstable, painful, or due to burns. The examiner measured the scar to be 8 cm by 0. 65 cm. The examiner also indicated that the scar was elevated, depressed, adherent to underlying tissue, or missing underlying soft tissue.  He noted that the Veteran had surface contour depressed on palpation; underlying soft tissue missing; hypopigmentation; and abnormal texture that was atrophic, shiny, and with loss of facial hair. The examiner measured the total area with hypopigmentation, abnormal texture, and missing underlying tissue to be 5.2 sq. cm. The examiner also found the Veteran to have gross distortion or asymmetry of facial features or visible or palpable tissue loss at the chin. The examiner also observed there to be a 7 cm by 10 cm patch of numbness in the left cheek and left upper lip and left chin/neck from the injury and repair. The examiner stated that the skin nerve fibers were disrupted, causing itchiness and numbness. The examiner stated the Veteran had no difficulty with eating or drinking. 

On the October 2019 VA scar examination, the examiner indicated that the Veteran had a scar on the left mandible with some loss of pigmentation. The examiner did not observe any scarring on the left neck on examination. The examiner found the scar on the left mandible to be stable, not painful, with no loss of covering of skin over the scar. The examiner observed the scar on the left mandible to be 7 centimeters in length and 0.5 cm in width. Also, the examiner observed the scar to not have elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The examiner further observed the scar to have hypopigmentation covering 3.5 cm squared. However, the examiner did not find the scar on the left mandible to have gross distortion or asymmetry of facial features or visible or palpable tissue loss. And the scar does not result in limitation of function.

Upon review of the record, the Board finds that prior to July 28, 2016 the competent evidence of record shows that the scar of the chin and neck was not painful, unstable, did not have gross distortion or asymmetry, and did not have two or three characteristics of disfigurement. To warrant a higher 30 percent rating, the scar must have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (noses, chin, forehead, eyes, ears, cheeks, lips), or; with two or three characteristics of disfigurement. The June 2008 examiner observed the scar to be elevated, but there was no tissue loss, distortion or asymmetry of one feature or paired set of features or two characteristics of disfigurement. Therefore, the Board concludes that the preponderance of the evidence of record is against the assignment of a rating in excess of 10 percent for the Veteran’s scar of the chin and neck.

From July 28, 2016 onward, the Board finds that the Veteran’s chin and neck scar more nearly approximates the 50 percent rating criteria. In this regard, the July 2016 VA examiner observed the Veteran’s scar to be at least one-quarter inch (0.6 cm) wide; have surface contour depressed on palpation; underlying soft tissue missing; hypopigmentation; and abnormal texture. Further, the July 2016 examiner observed the Veteran to have gross distortion or asymmetry of facial features or visible or palpable tissue loss at the chin. The Board finds that these observations constitute gross distortion or asymmetry of facial features or visible or palpable tissue loss of one feature and five characteristics of disfigurement productive of a 50 percent rating. Accordingly, the Board finds that a 50 percent rating is warranted from July 28, 2016 onward.  

In summary, the Board finds that a rating in excess of 10 percent prior to July 28, 2016 is not warranted and that a rating of 50 percent, but no higher, is assigned from that date onward. 

4. Entitlement to an initial rating in excess of 10 percent for a status post T12 compression fracture 

The Veteran asserts that his back disorder is more severe than currently evaluated.

Disabilities of the spine are currently rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 spine contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a.

When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that IVDS is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40.

On the July 2008 VA examination, the Veteran reported that he was unable to stand for long periods and that he experienced daily pain. He stated that he experienced flare-ups of his back pain daily that lasted a couple of hours. During flare-ups, the Veteran stated that he had moderately decreased limitation of motion and functional impairment. The examiner stated the Veteran’s pain was in the lumbar region and that the pain radiated intermittently to the posterior right leg down to the knee level.  The diagnosis was lumbar spine strain and moderate chronic anterior wedging noted of T12. The VA examiner observed the Veteran to ambulate with a moderately stiff appearing gait pattern. The examiner stated the Veteran had no spasms, but that there was tenderness on palpation in the lumbar muscles. The examiner observed the Veteran’s range of motion to be flexion to 88 degrees to the point of pain and 90+ degrees maximally; extension to 27 degrees without pain; left lateral side bending to 22 degrees to the point of pain and 24 degrees maximally; right lateral side bending to 28 degrees to the point of pain and 29 degrees maximally; left lateral rotation to 37 degrees to the point of pain and maximally; right lateral rotation to 32 degrees to the point of pain and 34 degrees maximally. The examiner stated there was no loss of active range of motion of the lumbar spine with repetitive use, except for right lateral side bending which lost from 28 degrees due to pain. 

On a July 2009 NOD, the Veteran stated that his severe back pain had caused him to have difficulty sitting or standing for more than ten minutes. He stated that he limited car rides to 20 minutes due to the discomfort and pain in his back. He stated that he had not lost range of motion in the back, but that he had pain. He stated he was unable to meet physical requirements at work for more demanding positions. 

VA treatment records note the Veteran to have active chronic low back pain.

On the July 2010 substantive appeal, the Veteran stated he experienced pain and discomfort. 

A November 2012 VA treatment record notes the Veteran’s report of low back pain that had worsened and become constant. He stated that he had experienced radiation of the pain down his left leg and that the leg pain occurred with sitting and walking.  Also, in November 2012 the Veteran complained of back pain that had worsened during the prior few months. 

On the November 2015 VA spine examination, the examiner indicated diagnoses of vertebral fracture and strain. The Veteran stated that his back was aggravated by lifting and carrying items. The Veteran stated that he experienced flare-ups with increased pain.  The examiner observed that the Veteran’s range of motion was forward flexion to 110 degrees; extension to 35 degrees; right lateral flexion to 25 degrees; left lateral flexion to 20 degrees; right lateral rotation to 45 degrees; and left lateral rotation to 45 degrees. The examiner observed pain on examination in right lateral flexion and left lateral flexion, however, he stated that the pain did not result in or cause functional loss. There was no pain with weight bearing. The examiner stated an objective opinion could not be provided as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or after use over time as he did not observe the Veteran during these periods and any opinion would be resorting to speculation. The examiner further observed guarding or muscle spasm of the back that was manifested as localized tenderness not resulting in abnormal gait or abnormal spinal contour. The examiner also indicated that the Veteran had radiculopathy in the left lower extremity that caused moderate intermittent pain. The examiner found the radiculopathy to be mild. The Veteran did not find the Veteran to have ankylosis of the spine or IVDS. The examiner indicated that the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. 

An August 2016 VA treatment record reflects the Veteran’s complaint of low back pain. He stated that the pain was constant to frequent mild to moderate, dull, aching, pain in the bilateral low back region. He denied radiation or paresthesia in the bilateral lower extremities. The Veteran reported that the back pain was aggravated with standing, bending over, and physical activity. 

In August 2016, the Veteran complained of constant to frequent mild to moderate dull, aching, and pain in the back. The medical provider observed the Veteran to walk with a normal gait and to have lumbar flexion of 64 to 66 degrees; lumbar extension 15 to 17 degrees; left lateral flexion 16 to 18 degrees; and right lateral flexion 17 to 18 degrees. The provider observed the Veteran to have pain on all ranges of motion. 

In September 2016, a VA provider indicated that the Veteran experienced low back pain, thoracic spine pain, and disorders at T12. The Veteran complained of frequent mild to moderate dull, aching, and pain in the back. The medical provider observed the Veteran to ambulate with a normal gait, and range of motion to be lumbar flexion 65 to 67 degrees; lumbar extension 15 to 17 degrees; left lateral flexion 16 to 18 degrees; and right lateral flexion 17 to 18 degrees. The medical provider observed all the Veteran’s lumbar range of motion to be positive for pain. 

On the July 2019 VA back examination, the examiner indicated a diagnosis of vertebral fracture and stated that the Veteran’s established diagnosis of status post T12 compression fracture had changed and was a progression of the previous diagnosis. The Veteran stated that he experienced increased low back pain, sciatica pain in the left buttock, and morning stiffness. He stated he had difficulty with long car rides, and a need for frequent rest periods with long periods of standing and sitting. The Veteran reported flare-ups of the back. He stated the flare-ups occur five times per week and lasted 20 minutes. He stated the flare-ups were precipitated by repetitive movement, long distance driving, long distance walking, and long periods of standing. He stated the flare-ups were alleviated by resting and repositioning. 

The July 2019 VA examiner observed the Veteran’s range of motion to be normal with forward flexion to 90 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner observed pain on forward flexion and extension but indicated that the pain did not result in or cause functional loss. Also, the examiner indicated that the pain did not limit functional ability with repeated use over a period of time. The examiner observed no evidence of pain on passive range of motion and on non-weight bearing. Further, the examiner indicated that the flare-ups did not limit the Veteran’s functional ability. The examiner did not observe the Veteran to have guarding or muscle spasms of the back. The examiner did not observe ankylosis or IVDS of the spine.

The July 2019 VA examiner observed the Veteran to have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated the Veteran had mild intermittent pain in the left lower extremity. 

On the October 2019 VA back examination, the examiner indicated a diagnosis of status post T12 compression fracture and bilateral lower extremity radiculopathy. The Veteran stated that his back symptoms had not worsened in the last year. The Veteran stated he experienced constant pain to the upper back. The Veteran stated he experienced flare-ups while working or doing repetitive activities. He stated the flare-ups occurred one time per week, were severe, and lasted two to three days. The Veteran did not report having any functional loss or functional impairment of the back. 

On examination, the October 2019 VA examiner observed the Veteran’s range of motion to be normal. The examiner indicated the Veteran’s forward flexion is to 90 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner observed no ankylosis of the spine and no (IVDS. The examiner observed the Veteran to experience pain on rest and non-movement. The examiner also indicated that the Veteran experienced pain in forward flexion, extension, and on weight bearing. The examiner indicated that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time. The examiner also found that pain, weakness, fatigability, or incoordination did not limit functional ability with flare-ups. The examiner stated that after further review of the disability benefits questionnaire (DBQ), physical examination, reported history, subjective complaints, relevant evidence of record, and medical knowledge and expertise, there remained no basis to offer additional losses of function or motion when it came to flare-ups. The examiner stated that passive range of motion of the spine was not performed as it was not feasible to perform this testing safely. Also, the examiner stated that non-weight bearing assessment was not applicable and that there was no objective evidence of pain when the spine is in a non-weight bearing position at rest. 

The October 2019 VA examiner observed the Veteran to experience radiculopathy. The examiner indicated the radiculopathy causes the Veteran constant pain, that may be excruciating at times, in the right and left lower extremity. The examiner observed the radiculopathy to be mild. The examiner stated the Veteran’s new diagnosis of the right lower extremity radiculopathy is a progression of the previous diagnosis. The examiner noted the Veteran’s left lower extremity radiculopathy is service connected and is due to the back disorder.

Upon review of the record, the Board finds that a disability rating in excess of 10 percent for the Veteran’s back disorder is not warranted. To obtain a higher rating, it is necessary to show 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. Here, however, the Veteran has been found to have forward flexion greater than 60 degrees, range of motion greater than 120 degrees, and no muscle spasms or guarding resulting in abnormal gait or abnormal spinal contour, at any point during the period on appeal. At worst, the Veteran’s forward flexion was limited to 67 degrees. Further, there is no evidence the Veteran has a diagnosis of IVDS. Thus, the Board finds that a higher rating is not warranted for the Veteran’s status post T12 compression fracture at any time during the period on appeal. 

Similarly, in conjunction with 38 C.F.R. §§ 4.40, 4.45, 4.59; and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board has considered range of motion testing and medical and reports of the Veteran’s symptoms, and how this translates to functional loss. However, the Board finds that his functional loss is contemplated in the 10 percent rating assigned, even during flareups.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

5. Entitlement to an initial compensable rating prior to November 22, 2015, and in excess of 10 percent thereafter, for lower left extremity sciatic nerve paralysis

The Veteran asserts that his left lower extremity sciatic nerve paralysis is more severe then currently evaluated. 

Disabilities of the sciatic nerves are rated under Diagnostic Code 8520, which provides for a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520.  

The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120.

On the July 2008 VA examination, the examiner stated that the Veteran’s pain was in the lumbar region and radiated intermittently to the posterior right leg down to the knee level.  

In a November 2012 VA treatment record, the Veteran stated he had experienced radiation of the pain down his left leg and the leg pain occurred with sitting and walking.  

On the November 22, 2015 VA examination, the examiner indicated that the Veteran had radiculopathy in the left lower extremity that had moderate intermittent pain. The examiner found the radiculopathy to be mild.

In an August 2016, the Veteran denied radicular or paresthesia in the bilateral lower extremities.

The July 2019 VA back examiner observed the Veteran to have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated the Veteran had mild intermittent pain in the left lower extremity. 

On the July 2019 VA peripheral nerves condition examination, the examiner indicated the Veteran did not have a peripheral nerve condition and the examiner did not observe any symptoms attributable to any peripheral nerve condition. The Veteran stated he experienced increased pain in the lower back and more intense pain to the left buttock and sciatica pain. He stated that his disorder impacted his ability to perform occupational tasks and activities of daily living, including walking or standing for long periods, difficulty with long distance driving, and an inability to lift heavy objects. 

The October 2019 VA back examiner observed the Veteran to experience radiculopathy. The examiner indicated the radiculopathy caused the Veteran constant pain, that may be excruciating at times, in the right and left lower extremities. The examiner observed the radiculopathy to be mild. The examiner stated the Veteran’s new diagnosis of the right lower extremity radiculopathy is a progression of the previous diagnosis. The examiner noted the Veteran’s left lower extremity radiculopathy is service connected and is due to the back disorder. 

On the October 2019 VA peripheral nerves condition examination, the examiner indicated diagnoses of sciatic nerve left lower extremity and bilateral lower extremity radiculopathy. The Veteran stated that he experienced shooting pain down the left leg. He stated the sciatica had worsened in the last year and flared up often. 

The October 2019 VA examiner observed that the Veteran experienced constant pain, that may be excruciating at times, in the bilateral lower extremities that was mild. The examiner indicated the Veteran experiences mild incomplete paralysis on the right and left sciatic nerve.

Prior to November 22, 2015, the Board finds that the evidence does not support a compensable rating for the Veteran’s left lower extremity sciatic nerve. The Board finds that prior November 22, 2015, the Veteran’s complaints of left lower extremity radiating pain was not observed by the July 2008 VA examiner to be mild incomplete paralysis. Therefore, a compensable rating prior to November 22, 2015 for left lower extremity sciatic nerve is not warranted. 

From November 22, 2015 onward, the Board finds that the evidence does not support a rating in excess of 10 percent for the Veteran’s left lower extremity sciatic nerve. To warrant a 20 percent rating, the Veteran’s sciatic nerve must be classified as moderate incomplete paralysis. The Board finds that from November 22, 2015 onward, the November 2015, July 2019, and October 2019 VA examiners observed the Veteran’s left lower extremity sciatic nerve incomplete paralysis to be mild. Therefore, a rating in excess of 10 percent for left lower extremity sciatic nerve after November 22, 2015 is not warranted. 

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

6. Entitlement to an initial rating in excess of 10 percent for a status post right index finger shrapnel injury

The Veteran asserts that his right finger disability is more severe than currently rated. 

The terms mild, moderate, and severe are not defined in the Rating Schedule. 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. Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2.

VA regulations provide that an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; and a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56 (a), (b) (2016). 

For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c).

Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d). 

The type of injury associated with a moderate muscle disability is described as being from a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. History should include evidence of in-service treatment for the wound, as well as a record of consistent complaints of one or more cardinal signs and symptoms of muscle disability particularly lower threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance or impairment of muscle tonus; and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2).

A moderately severe muscle disability comprises a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3).

Severe muscle disability contemplates through-and-through or deep penetrating wounds due to 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. There should be a history of hospitalization for a prolonged period for treatment of the wound, with consistent complaints 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. Objective findings should include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56 (d)(4). 

If present, the following are also signs of severe muscle damage: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electro-diagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezium and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4).

A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. There will be no rating assigned for muscle groups which act upon an ankylosed joint, except for an ankylosed knee, if muscle group XIII is disabled (rated at the next lower level than would otherwise be assigned), and an ankylosed shoulder, if muscle groups I and II are severely disabled (evaluation under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups will not be rated). The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. For muscle group injuries in different anatomical regions that do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.55.

A through-and-through muscle wound is to be rated as at least of the moderate degree of injury for each muscle group injured. Myler v. Derwinski, 1 Vet. App. 571 (1991). While the regulations require “muscle damage,” there is no specified minimum degree of damage in order for the injury to be of moderate degree. Beyrle v. Brown, 9 Vet. App. 377 (1996). Further, in situations wherein there are two or more through and through wounds, the Court has clearly held that such wounds are to be separately rated. Jones v. Principi, 18 Vet. App. 248 (2008).

The function of Muscle Group VII is flexion of the wrist and fingers. See 38 C.F.R. § 4.73, Diagnostic Code 5307. Under Diagnostic Code 5307, a noncompensable rating is assigned for slight injury of the dominant hand, a 10 percent rating is warranted for moderate injury of the dominant hand, a 30 percent rating is warranted for moderately severe injury of the dominant hand, and a 40 percent rating is warranted for severe injury of the dominant hand. Id.

The record reflects that the Veteran is right hand dominant. 

On the July 2008 VA examination, the Veteran stated that he experienced recurring pain and continuing loss of range of motion and strength. The Veteran stated he had difficulty in lifting and pulling objects. The examiner observed the Veteran to have slight tenderness to palpation of the site of the right index finger. The examiner stated that imaging revealed a foreign body in the finger. On examination, the July 2008 examiner diagnosed the Veteran with right index finger retained shrapnel with evidence on imaging. The July 2008 VA examiner observed the Veteran’s right index finger to have shrapnel. The examiner observed the Veteran to have guarding with pain. 

On a July 2009 NOD, the Veteran stated that due to the shrapnel in his finger, he could no longer pull handles with his right hand. He stated that carrying heavy items with his right hand caused discomfort and pain. He stated that he had difficulty gripping gym weights. 

On the July 2010 substantive appeal, the Veteran stated he could not grip a pen or a can because of the pain and discomfort. 

On the November 2015 VA hand and finger condition examination, the examiner diagnosed residuals of a shrapnel injury in the right index finger. The Veteran stated that he had no loss of motion in the right index finger, but when picking something up or using the right hand, he experienced pain because shrapnel remains in the hand or finger. He stated that he experienced discomfort. The Veteran stated that he did not experience flare-ups. The Veteran reported functional loss or functional impairment with difficulty in gripping and pulling with the right hand. The examiner indicated that the Veteran denied any loss of motion. 

The November 2015 examiner indicated there was evidence of pain with use of the right hand and objective evidence of localized tenderness or pain on palpation. The examiner stated that the Veteran’s right hand was tender over the right index finger. The examiner indicated that the examination was not for the left hand and the examiner did not observed pain or objective evidence of localized tenderness or pain on palpation in the joint or associated soft tissue. The examiner did not observe ankylosis in the right or left hand. The examiner also indicated the Veteran had shrapnel in the right hand. The examiner remarked the Veteran to have tenderness when palpating over the shrapnel piece, and otherwise there is no pain. The examiner also stated there is no loss of motion with examination, no gap identified, and only residual fragment, when compared to the left hand. 

On the November 2015 VA muscle injuries examination, the examiner indicated that the Veteran had shrapnel in the right index finger. The examiner indicated that the Veteran had a penetrating muscle injury, to include a shell fragment wound. The examiner remarked that there currently did not appear to be any specific group of muscles that were affected. The examiner stated that the retained shrapnel did not cause pain with palpation and would aggravate the Veteran’s ability to grip things, carry things, and push/pull things due to shrapnel. The examiner stated that the muscle most likely affected were the lumbricales of the hand. 

On the October 2019 VA muscle injury examination, the examiner indicated that the Veteran had a diagnosis of status post shrapnel injury in the right index finger. The Veteran stated that the injury was stable and denied complaints of the injury. 

The October 2019 VA examiner indicated the Veteran had an injury in the muscle group of the forearm or hand on the right that affects the function of flexion of wrists and fingers and extension of wrist, fingers and thumbs. The examiner observed the Veteran to have minimal scars associated with the muscle injury. 

Upon review of the record, the Board finds a rating in excess of 10 percent for status post residuals of a right index finger shrapnel injury is not warranted. 

Historically, there was no hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability. With respect to the type of injury, although the Veteran's injury may be a through-and-through wound from a small high velocity missile and required debridement, there was no prolonged infection, sloughing of soft parts, or intermuscular scarring. Post service, the Veteran did well and is employed. Lastly, in terms of objective findings, while there were entrance and exit scars indicating a track of missile through one or more muscle groups, there were no indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Consequently, an increased rating is not warranted under the Diagnostic Code pertaining to muscle injuries.

Given the above, the Board finds that the Veteran’s status post residuals right index finger shrapnel injury has been manifested by no more than moderate disability of Muscle Group VII and a rating in excess of 10 percent is not warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

7. Entitlement to an initial rating in excess of 10 percent for a right knee disorder

8. Entitlement to an initial rating in excess of 10 percent for a left knee disorder

The Veteran asserts that his bilateral knee disorder is more severe than currently evaluated. 

Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II.

Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability, 10, 20 and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or lateral instability, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, which evaluates dislocated cartilage, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include Diagnostic Code 5256 for ankylosis of the knee; Diagnostic Code 5259 for symptomatic removal of the semilunar knee cartilage; DC 5262 for impairment of the tibia and fibula; and Diagnostic Code 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).

Under Diagnostic Code 5055, a 30 percent rating is warranted as a minimum rating for knee replacement. With intermediate degrees of residual weakness, pain, or limitation of motion, the condition is rated by analogy to Diagnostic Code 5256, 5261, or 5262. A 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for one year following implantation of prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055.

At the outset, the Board notes that the evidence does not support an award for increased ratings for the right knee under Diagnostic Code 5055 for knee replacement (prosthesis); Diagnostic Code 5256 for ankylosis of the knee; Diagnostic Code 5262 for impairment of tibia and fibula; or Diagnostic Code 5263 for genu recurvatum. This is because none of these disabilities have been demonstrated upon VA examinations performed in July 2008, July 2016, and October 2019 and are not otherwise reflected in the record before the Board at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5262, 5263.

On the July 2008 VA examination, the Veteran stated that he experienced knee pain that was localized, constant, moderate, and a pressure type sensation. The Veteran reported weakness, stiffness, swelling, and instability in the knees. He also stated he had fatigability and lack of endurance in the knees. The Veteran stated that flare-ups occurred after physical activity. He stated the flare-ups occurred about three times per week and lasted an entire day and were moderate in severity. The Veteran stated he had no limitation of motion during flare-ups. 

On examination, the July 2008 VA examiner indicated diagnoses of bilateral knee patellofemoral syndrome and degenerative changes in the left knee. The examiner observed clicking in the knees during ambulation. The examiner stated there was no instability in the bilateral knees. The examiner observed no significant effusion. The examiner stated there was clicking of the patella with passive range of motion of the knees. The examiner observed the Veteran’s range of motion bilaterally to be extension to 0 degrees; left knee flexion to 122 degrees without pain, passively to 135 degrees without pain; right knee flexion to 122 degrees to the point of pain and 125 degrees maximally; passively to 130 degrees to the point of pain and maximally. The examiner stated there was no loss of active knee flexion after repetitive movement. 

In a July 2009 NOD, the Veteran stated that his right knee pain limited his ability to perform daily tasks, such as mowing the lawn. He stated that his right knee pain hindered his ability to run and that instead he used an elliptical trainer. He stated that the pain and swelling from trying to run was severe. He stated that after physical activity, he had stiffness and pain in the right knee that caused him to take over the counter medication to relieve the pain. He stated that his occupation required him to stand for long hours and the right knee pain has made it difficult for him to exceed standards at work. In addition, the Veteran also stated that the severity of the left knee pain had made it difficult to do easy tasks. He stated that he experienced pain and stiffness with movement in the left knee. He stated that physical activity caused pain in the left knee. 

On the July 2010 substantive appeal, the Veteran stated that his bilateral knees were very sore and are painful when walking or jogging. 

In a July 2012 statement, the Veteran stated that his chronic joint pain had worsened. He stated that after physical activity he had stiff and sore joints for several days. He stated that his knees were most affected by the pain. 

In a July 2016 VA knee examination, the examiner indicated a diagnosis of right knee meniscal tear, right knee patellofemoral syndrome with spurring, and left knee arthritis. The Veteran stated that he experienced aching in both knees that was precipitated by being on his feet. He stated that he was unable to squat due to the bilateral knee discomfort. The Veteran reported that he experienced flare-ups. He stated the flare-ups caused swelling and aching, that was further aggravated in cold weather or when riding in a truck or tractor for extended periods of time. 

The July 2016 VA examiner observed the Veteran’s right and left knee range of motion to be flexion to 115 degrees and extension to 0 degrees. The examiner did not observe pain on examination in either knee. The examiner indicated that there was evidence of localized tenderness or pain on palpation in the bilateral knees. The examiner indicated there was objective evidence of crepitus in the bilateral knees. The examiner observed pain on weight bearing. The examiner stated that he was unable to estimate the additional loss of motion during flare-ups or due to pain on use, weakness, fatigability, or incoordination objectively because he did not observe the Veteran during the flare-up or on during repeated use, and any estimation would be resorting ot mere speculation. The examiner did not find the Veteran’s to have ankylosis. Also, the examiner observed the joint stability to be normal in the bilateral knees. The examiner indicated the Veteran has or has had shin splints in the bilateral knee, however, the shin splints do not affect the range of motion of the knees. Further, the examiner indicated the Veteran’s right knee has a history of meniscal tear with frequent episodes of joint pain and joint effusion. 

In an August 2016 VA treatment record, the Veteran stated his knees always hurt from running his landscape service. 

On the October 2019 VA knee examination, the examiner indicated diagnoses of right knee patellofemoral syndrome with spurring and left knee status post medial meniscectomy. The Veteran stated that he experienced achiness and stiffness in the left knee. He stated his left knee pain had worsened over the prior year. The Veteran reported that he experienced flare-ups in the left knee after a long work-day. 

On examination, the October 2019 examiner observed the Veteran’s right knee range of motion to be normal with flexion to 140 degrees and extension to 0 degrees, and no pain on examination. The examiner also observed the Veteran’s left knee range of motion to be normal with flexion to 140 degrees and extension to 0 degrees, with no pain noted on examination. Also, the examiner observed that the Veteran did not have ankylosis. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time in either knee. Further, the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups and there is no additional losses of function or motion when it comes to flare-ups. The examiner indicated that the Veteran did not have any objective evidence of pain on passive motion or pain on non-weight bearing in the left or right knee. The examiner did not observe recurrent subluxation, lateral instability, recurrent effusion, or joint stability. The examiner indicated the Veteran has had a prior meniscal tear in the left knee. 

Upon review of the evidence, the Board finds that the evidence does not support a rating in excess of 10 percent for the right or left knee disorders, under any relevant diagnostic codes. The Board finds that the Veteran’s right and left knee range of motion was never limited to the degrees required for a 20 percent rating in either extension (to 15 degrees) or flexion (to 30 degrees). Here, the relevant evidence demonstrates that the Veteran’s bilateral knee range of motion was limited to at worst 115 degrees in flexion and zero degrees in extension. As such, a separate or higher rating under either Diagnostic Code 5260 or 5261 is not warranted for this time period. After reviewing the entirety of the record, the Board finds that the Veteran’s demonstrated range of motion in extension and flexion does not warrant a rating under these codes. Therefore, a rating in excess of 10 percent for the period on appeal based on limitation of motion of the right knee and left knee is not warranted.

The Board also finds that a separate or higher rating for instability for the right or left knee under Diagnostic Code 5257 is not warranted. Here, the Board acknowledges that the Veteran credibly reported giving way of the bilateral knees in the July 2008 VA examination. However, although, the July 2008 VA examiner considered the Veteran’s reported giving way, the July 2008 examiner found no instability on testing. The July 2016 and October 2019 VA examiners observed no instability on examination. The Board finds that this medical evidence outweighs the Veteran’s lay reports of feelings of instability in his right and left knee. Therefore, the Board finds that a separate rating for recurrent subluxation and lateral instability is not warranted. 

Finally, the Board finds that separate or higher rating for dislocated cartilage for the right or left knee under Diagnostic Code 5258 is not warranted. Here, Diagnostic Code 5258 is not applicable to the right knee. In relation to the left knee, the Board acknowledges the Veteran has a prior history of a meniscal tear in the left knee. However, the no examiner observed the Veteran to experience “locking,” and effusion of either knee. Therefore, the Board finds that a separate rating under Diagnostic Code 5258 for dislocated cartilage is not warranted. 

The Board also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, as the Veteran’s assigned ratings for his right and left knee disability explicitly take into consideration his pain on motion, as discussed above, further increased ratings due to pain would be impermissible pyramiding. 

In summation, the Board finds the Veteran’s right and left knee do not warrant a rating in excess of 10 percent. 

9. Entitlement to an initial rating in excess of 10 percent for a bilateral toenail fungus

The Veteran asserts that his service-connected bilateral toenail fungus is more disabling than reflected by the 0 percent rating currently assigned. 

Under Diagnostic Code 7806, regarding dermatitis or eczema, a 10 percent rating requires that 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 be affected; or intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than percent of exposed areas affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017).

Diagnostic Code 7806 alternately provides for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); or as scars (Diagnostic Code 7801-7805), depending upon the predominant disability. 38 C.F.R. § 4.118. The Board, however, finds that these Diagnostic Codes are inapplicable here. In that connection, Diagnostic Code 7800 is inapplicable in that the Veteran’s skin disorder does not cause disfigurement of the head, face, or neck. Diagnostic Code 7801 governs scars that are deep and nonlinear. Diagnostic Code 7802 governs scars that are superficial and nonlinear an affect an area or areas of at least 144 square inches. Diagnostic Code 7804 governs scars that are unstable or painful. Diagnostic Code 7805 provides that other scars and effects of scars evaluated under the above Diagnostic Codes require the evaluation of any disabling effect(s) not otherwise considered. 38 C.F.R. § 4.118. Here, however, as the evidence establishes that there is no scarring or disfigurement present, the Board finds that the Veteran’s skin disorder is appropriately rated as dermatitis under Diagnostic Code 7806. 

The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). Here, the Veteran’s appeal was pending at the Board before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran’s claim for increased rating. 

Under Diagnostic Code 7806 regarding dermatitis or eczema under the revised Schedule for Rating Skin Disabilities, a 10 percent rating requires at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but not less than 20 percent of exposed areas affected; or intermittent systemic therapy, including but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018).

A 30 percent rating requires at least one of the following: characteristic lesions involving at least 5 percent but less than 20 percent of the entire body affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Id.

A 60 percent rating requires at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 50 percent of exposed areas affected; or constant or near-constant systemic therapy involving, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Id.

Diagnostic Code 7806 alternately provides for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); or as scars (Diagnostic Code 7801, 7802, 7804, or7805), depending upon the predominant disability. 38 C.F.R. § 4.118 (2018). The Board, however, finds that these Diagnostic Codes are inapplicable here. In that connection, Diagnostic Code 7800 is inapplicable in that the Veteran’s skin disorder does not cause disfigurement of the head, face, or neck. Diagnostic Code 7801 governs scars that are associated with underlying soft tissue damage. Diagnostic Code 7802 governs scars that are not associated with underlying soft tissue damage and affect an area or areas of 144 square inches or greater. Diagnostic Code 7804 governs scars that are unstable or painful. Diagnostic Code 7805 provides that other scars and effects of scars evaluated under the above Diagnostic Codes require the evaluation of any disabling effect(s) not otherwise considered. Id. Here, however, as the evidence establishes that there is no scarring or disfigurement present, the Board finds that the Veteran’s skin disorder is appropriately rated as dermatitis under Diagnostic Code 7806 under the revised 2018 Schedule for Rating Skin Disabilities. 

On the July 2008 VA examination, the Veteran stated that he was on no particular treatment. The examiner observed the Veteran to have residual discoloration of multiple toes on the bilateral feet. The examiner stated the Veteran was on no current treatment program with no evidence of malignancy. On examination, the examiner stated that the Veteran had a diagnosis of onychomycosis of the toenails. 

On the November 2015 VA skin examination, the examiner indicated that the Veteran had an infectious skin disorder of a toenail fungus. The Veteran stated he was not currently taking any mediations for the toenail fungus. He stated the disorder was on three toes on each foot. The examiner indicated the Veteran had not been treated in the past 12 months with any oral or topical medications. Also, the examiner indicated the Veteran has not had any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. The examiner observed the toenail fungus to cover none of the total body area and none of the exposed area. 

On the July 2019 VA skin examination, the examiner indicated the Veteran has dermatophytosis, specifically tinea unguium. The Veteran stated that he experienced thick and painful discolored toenails on both feet. He stated that he treated the disorder with a topical cream. The examiner indicated that the Veteran had been treated with medication in the past 12 months with an antifungal cream that was topical and had constant or near constant use. The examiner observed the skin disorder to cover less than five percent of the total body area and less than five percent of the exposed area. 

On the October 2019 VA skin examination, the examiner indicated the Veteran had a bilateral toenail fungus. The Veteran stated that his fungus itched in humid weather. The Veteran described the bilateral toenail fungus as dry skin with yellow-thick toenails. The examiner stated the Veteran had been treated with a corticosteroid or other immunosuppressive medication in the last 12 months. The examiner indicated the Veteran’s treatment was topical and the treatment is used for six or more weeks but was not constant. The examiner also indicated the Veteran treated his bilateral toenail fungus with another topical treatment that was used for six weeks or more but was not constant. The examiner observed the Veteran’s bilateral toenail fungus to cover less than five percent of the total body area and none of the exposed area. 

Upon review of the record, the Board finds that a compensable rating for the bilateral toenail fungus is not warranted. In order to warrant a 10 percent rating, the Veteran’s bilateral toenail fungus would have to be manifested by 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 be affected; or intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Here, however, the VA examination reports show that the Veteran’s bilateral toenail fungus, at worst, covers less than five percent of the total body area and less than five percent of the exposed area. Additionally, the July 2008 VA examiner indicated the Veteran was not on a treatment program. The July 2019 VA examiner stated the Veteran was treated with medication in the past 12 months that was topical and had constant or near constant use. Finally, the October 2019 VA examiner indicated the Veteran treated the bilateral toenail fungus with topical treatment for six weeks or more, but treatment was not constant. Accordingly, a compensable rating in is not warranted for the Veteran’s bilateral toenail fungus.

Under the 2018 revised Schedule for Rating Skin Disabilities, the Board finds that a compensable rating for bilateral toenail fungus is not warranted. In order to warrant a 10 percent rating, the Veteran’s bilateral toenail fungus would have to be manifested by at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but not less than 20 percent of exposed areas affected; or intermittent systemic therapy, including but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Here, as stated above, the Veteran’s bilateral toenail fungus covers at worst less than five percent of the total body area and less than five percent of the exposed area. Additionally, the Veteran’s treatment of the bilateral toenail fungus is topical and is used, at worst, constant or near constant. Accordingly, a compensable rating is not warranted for the Veteran’s bilateral toenail fungus under the 2018 revised Schedule for Rating Skin Disabilities.  

10. Entitlement to an initial rating in excess of 10 percent prior to October 16, 2018 and a compensable rating thereafter for bilateral hearing loss 

The Veteran asserts that his bilateral hearing loss is more severe than currently evaluated. 

The Veteran filed his initial claim requesting service connection for bilateral hearing loss in May 2008.  In a May 2009 VA rating decision, service connection for bilateral hearing loss was granted.  The Veteran was assigned a 10 percent disability rating for the entire appeal period effective from October 1, 2008 (the date following separation from active service).  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  In a November 2018 VA rating decisions, a noncompensable (0 percent) disability rating was assigned effective from October 16, 2018.  The Board acknowledges this represents a lower evaluation, however, as this is the initial assignment of compensable evaluations for these stages, due process protections in 38 C.F.R. § 3.105(e) are not applicable. See O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). The assignment of an initial rating is a retroactive action, while the regulation applies to prospective actions. Singleton v. Shinseki, 23 Vet. App. 376 (2010); see Reizenstein v. Peake, 22 Vet. App. 202 (2008), aff’d sub nom, 583 F.3d 1331 (Fed. Cir. 2009).

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI, VIa and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. 

Additionally, under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of speech discrimination is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 

In addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

On the July 2008 VA examination, the examiner stated the Veteran has moderately severe sensorineural hearing deficit.  

On a July 2009 NOD, the Veteran stated his bilateral hearing loss makes it difficult to listen to the television without closed captioning and a high volume. He stated that he has difficulty communicating with others at home and work. 

An April 2013 VA treatment record found that puretone thresholds, in decibels, were:

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	15	25	70	80	48

LEFT	15	50	80	95	60

The average thresholds were 48 decibels in the right ear and 60 in the left ear.  There is no indication the Veteran underwent speech recognition testing.

A May 2013 VA treatment record found that puretone thresholds, in decibels, were:

			HERTZ		

	1000	2000	3000	4000	Avg

RIGHT	15	25	70	80	48

LEFT	15	50	80	95	60

The average thresholds were 48 decibels in the right ear and 60 in the left ear.  There is no indication the Veteran underwent speech recognition testing.  

A July 2015 VA treatment record found that puretone thresholds, in decibels, were:

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	15	25	70	80	48

LEFT	15	50	80	95	60

The average thresholds were 48 decibels in the right ear and 60 in the left ear.  There is no indication the Veteran underwent speech recognition testing.

A November 2015 VA audiological examination found that puretone thresholds, in decibels, were:

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	15	25	70	80	48

LEFT	10	50	80	95	59

The average thresholds were 48 decibels in the right ear and 59 in the left ear.  There is no indication the Veteran underwent speech recognition testing. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear. The Veteran reported an increased difficulty in understanding speech in all listening situations, especially in the presence of background noise, including with his hearing aids. He stated that when there is background noise, everything is garbled. He stated that that he listens to the television with the closed caption and the maximum volume. 

An October 16, 2018 VA audiological examination found that puretone thresholds, in decibels, were: 

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	15	25	65	85	48

LEFT	15	50	80	95	60

The average thresholds were 48 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran reported that he has increased difficulty understanding speech in all listening situations, especially in the presence of background noise. He also stated he listens to the television with closed caption on and the volume turned up to the maximum. 

In the November 2018 NOD, the Veteran stated his bilateral hearing loss had worsened. 

A May 2019 VA audiological examination found that puretone thresholds, in decibels, were: 

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	15	35	75	85	53

LEFT	15	50	80	95	60

The average thresholds were 53 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The Veteran reported he has difficulty communicating with customers and employees. He stated he has difficulty hearing the television and using the telephone.  

On the October 2019 VA audiological examination, the examiner found that puretone thresholds, in decibels, were: 

 	 	 	HERTZ	 	 

	1000	2000	3000	4000	Avg

RIGHT	10	35	70	85	50

LEFT	15	50	85	100	63

The average thresholds were 50 decibels in the right ear and 63 in the left. Speech audiometry revealed speech recognition ability of 84 percent it the right ear and 90 percent in the left ear. The Veteran stated that his hearing loss impacts ordinary conditions of daily life by interfering with basic communication, to include difficulty hearing the television. He stated that general communication is difficult, to include speaking with the customers of his landscaping business, with increased difficulty with background noise. 

With respect to the April 2013, May 2013, and July 2015 VA treatment audiological examinations, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. However, as the audiometric results were conveyed in a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicating that the Board was empowered to make such factual findings in the first instance).

The Board finds that the April 2013, May 2013, and July 2015 VA treatment audiological examination reports lack probative value because they do not include any speech recognition test results, which is a requirement for a hearing impairment examination for VA purposes.  See 38 C.F.R. § 4.85(a).  As a result, a Roman numeral cannot be designated for hearing impairment of the right and left ears pursuant to Table VI.  Table VIa, which provides a Roman numeral level based on puretone thresholds only, without inclusion of speech recognition scores, may only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or when an exceptional pattern of hearing loss is present.  38 C.F.R. § 4.85(c).  

The November 2015 VA examination results in a Roman numeral designation Level I for the right ear and Level III for the left ear. Taken together, that is a zero percent evaluation. See 38 C.F.R. § 4.85, Table VI.  

The October 16, 2018 VA examination results in a Roman numeral designation Level I for the right ear and Level II for the left ear. Taken together that is a zero percent evaluation. Id. The May 2019 VA examination results in a Roman numeral designation Level I for the right ear and Level II for the left ear. Taken together, that is a zero percent evaluation. Id. The October 2019 VA examination results in a Roman numeral designation Level II for the right ear and III for the left ear. Taken together, that is a zero percent evaluation. Id. 

Moreover, none of the pure tone thresholds at any time during the appeal period qualify as exceptional patterns of hearing, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a pure tone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As a result, use of table VIa is not for application in this case.  See 38 C.F.R. § 4.86.

The Board acknowledges the Veteran’s reported worsening and functional impairment of his bilateral hearing loss throughout the appeal period, as discussed above.  He is competent to report as such because this requires only personal knowledge as it comes through one’s senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  His assertions are also credible.  However, the assignment of a disability rating for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results.  See Lendenmann, 3 Vet. App. at 349.  In this case, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record.  The Veteran in this case is not competent to measure his level of hearing loss and apply it to the rating schedule, as the record does not show he has the expertise or training to conduct audiologic testing to measure the degree of his bilateral hearing loss.

Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The functional impact that the Veteran describes is contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

(Continued on the next page)

 

Based on the foregoing information, the Board does not find that, at any point in time during the appeal period, the Veteran’s bilateral hearing loss disability warranted an initial rating in excess of 10 percent prior to October 16, 2018 or a compensable rating thereafter.  Accordingly, the claim is denied.

 

 

J.K. Barone

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Thompson, 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.