Citation Nr: 21062643
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 14-31 996A
DATE: October 8, 2021

ORDER

An initial disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) prior to April 5, 2019, is denied.

An initial disability rating higher than 30 percent for asthma is denied.

An initial disability rating higher than 10 percent prior to September 30, 2015, for right upper extremity peripheral neuropathy is denied.

An initial disability rating higher than 30 percent on and after September 30, 2015, for right upper extremity peripheral neuropathy is denied.

An initial disability rating higher than 10 percent prior to September 30, 2015, for left upper extremity peripheral neuropathy is denied.

An initial disability rating higher than 20 percent on and after September 30, 2015, for left upper extremity peripheral neuropathy is denied.

A compensable disability rating prior to November 7, 2014, for bilateral hearing loss is denied.

A 10 percent rating from November 7, 2014, to April 17, 2019, for bilateral hearing loss effective is granted.

An initial compensable rating prior to September 30, 2015, for gastroesophageal reflux disease (GERD) is denied.

An initial compensable disability rating for residuals of basal cell carcinoma (BCC) excision is denied.

REMANDED

An initial disability rating higher than 20 percent prior to September 30, 2015, for kyphosis, degenerative joint disease of the lumbar spine, IVDS (lumbar spine disability) is remanded.

An initial disability rating higher than 40 percent from September 30, 2015, to April 10, 2019, for the service-connected lumbar spine disability is remanded.

An initial disability rating higher than 20 percent on and after April 11, 2019, for the service-connected lumbar spine disability is remanded.

Entitlement to higher levels of special monthly compensation (SMC) for all periods on appeal is remanded.

FINDINGS OF FACT

1. Prior to April 5, 2019, the Veteran's service-connected PTSD was not productive of total occupational and social impairment.

2. The preponderance of the evidence indicates that the Veteran asthma had not been productive of FEV-1 of 41 to 55 percent predicted, or the ratio of FEV-1 to FVC is 40 to 55 percent, or required at least monthly visits to a physician for required care of exacerbations, or requested intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.

3. Prior to September 30, 2015, the Veteran's right and left upper extremity peripheral neuropathy was manifested by at most mild incomplete paralysis of the median nerve. 

4. The Veteran's right and left upper extremity peripheral neuropathy has been manifested by at most moderate incomplete paralysis of the median nerve since September 30, 2015. 

5. Prior to November 7, 2014, the Veteran's bilateral hearing loss was manifested by at most Level I severity of impairment in each ear.

6. During the time period November 7, 2014, to April 17, 2019, the Veteran's bilateral hearing loss was manifested by Level IV severity of impairment in the right ear and Level V severity of impairment in the left ear.

7. Prior to September 30, 2015, the Veteran's GERD was not manifested by two or more of the symptoms for a 30 percent rating of less severity.

8. The Veteran's BCC was completely excised and the residual scar does not result in any characteristic of disfigurement or other disabling manifestation.

CONCLUSIONS OF LAW

1. Prior to April 5, 2019, the criteria for a disability rating higher than 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for a disability rating higher than 30 percent for asthma have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6602.

3. The criteria for an initial disability rating higher than 10 percent prior to September 30, 2015, for right upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515. 

4. The criteria for an initial disability rating higher than 30 percent since September 30, 2015, for right upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515.

5. The criteria for an initial disability rating higher than 10 percent prior to September 30, 2015, for left upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515. 

6. The criteria for an initial disability rating higher than 20 percent since September 30, 2015, for left upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515.

7. The criteria for a disability rating of 10 percent from November 7, 2014, to April 17, 2019, for bilateral hearing loss have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100.

8. The criteria for a disability rating higher than 0 percent prior to November 7, 2014, for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100.

9. Prior to September 30, 2015, the criteria for a compensable disability rating for GERD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346.

10. The criteria for a compensable disability rating for BCC residuals are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7818.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from September 1954 to September 1958, and from December 1958 to August 1979.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2010, August 2011, and June 2019 by a VA Regional Office (RO).  

In a decision dated March 16, 2018, the Board, in pertinent part, remanded the claims for increased ratings that are the subject of this decision.

In February 2020, the Board decided the claims for increased rating that are the subject of this decision.

During the Veteran's lifetime he appealed the February 2020 Board decision to the Court.  While the matter was still pending, the Veteran died, and the Appellant was appropriately substituted in the Veteran's stead.  

In February 2021, the parties submitted a Joint Motion for Partial Remand (JMPR), and in an Order dated in March 2021, the Court granted the parties' Motion; vacated, as requested by the parties, certain specified parts of the Board's February 2020 decision (as identified on the title page of this decision) and remanded these matters back to the Board for action consistent with the terms of the Joint Motion.  The remaining issues, ratings, and periods on appeal decided by the Board's February 2020 decision were expressly dismissed by the Court and, therefore, will no longer be discussed here.

The Board notes that in correspondence received by VA in April 2021, the appellant stated that she was represented by the American Legion and requested VA to "ensure they receive copies of all correspondence, past, present, and future."  However, on perusal of the case the Board finds no such authorization in the claims file.  Whereupon, in a letter dated in July 2021, the Board apprised the appellant of this fact and informed the appellant that she should submit a VA Form 21-22, signed by her and her representative, if she wanted to be represented in her appeal, and that she had 30 days to respond.  The appellant has not responded.  Accordingly, the Board has not communicated with any 3rd party on the appellant's behalf.  

Evidence Received Since the Last Agency Of Original Jurisdiction (AOJ) Review

At the outset, the Board acknowledges that the record contains evidence not reviewed by the AOJ in any Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC).  The evidence, however, largely consists of the Appellant's lay arguments or records provided by the Appellant herself that are duplicative in content to what was before the AOJ.  That is, the matters on appeal concern past time periods and the evidence submitted is largely duplicative information from what was contended in the past. 

As will be outlined in the remand portion of this decision below, however, one private treatment record provided by Appellant indicates there may be outstanding lumbar spine records relevant to the time period on appeal here for the lumbar spine issue and, therefore, a remand is appropriate for the lumbar spine increased rating claims. 

None of the other submitted records, however, indicate a duty to assist concern or presents more than cumulative information that was already before the AOJ.  Thus, other than the remanded issues below, the Board finds no prejudicial error in proceeding with a decision here.

Increased Rating

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  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.

Even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.  

Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

1. An initial disability rating higher than 70 percent prior to April 5, 2019, for PTSD is denied.

In a rating decision dated in July 2010, the RO granted service connection for PTSD with a rating of 70 percent effective April 3, 2006.  The Veteran appealed that decision for a higher initial rating.  

In a rating decision dated in August 2016, the RO granted an earlier effective date for the award of service connection for PTSD because of clear and unmistakable error and assigned a rating of 70 percent effective March 31, 2006.

In a rating decision dated in June 2019, the RO increased the rating to 100 percent effective April 5, 2019.  

In a decision dated in February 2020, the Board denied a rating higher than 70 percent prior to April 5, 2019, for PTSD; and the Veteran (now deceased) appealed that decision to the Court.  

In a February 2021 JMPR, the parties noted that the Veteran had annotated a March 8, 2010, VA PTSD examination report with his belief that he experienced persistent hallucinations and that he had them 8 or 10 times per week, and agreed that the Board had failed to consider or discuss this statement as part of its statement of reasons or bases denying the claim for a rating higher than 70 percent prior to April 5, 2019.  

The issue in this appeal is whether the Veteran's PTSD and associated symptoms caused the level of impairment required for an initial disability rating greater than 70 percent (of 100 percent) prior to April 5, 2019.  

For the reasons that follow the Board concludes that the Veteran's symptoms did not cause the level of impairment required for an initial disability rating higher than 70 percent prior to April 5, 2019. 

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

The Veteran's PTSD is rated under the provisions at 38 C.F.R. § 4.130 (Diagnostic Code 9411), which provide for a 50 percent rating when symptoms such as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

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

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

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  See 38 C.F.R. § 4.126(a).  Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  

The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned."  Id.  In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level.").

Crucially, the presence of certain symptoms is not necessarily determinative.  These symptoms must also cause the occupational and social impairment in the referenced areas.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  

The Board notes that this appeal was first certified to the Board after the August 4, 2014, adoption of the DSM-5, so the DSM-IV is inapplicable, and the Board will not consider any GAF scores.  See 80 Fed. Reg. 14308 (March 19, 2015).  See also Golden v. Shulkin, 29 Vet. App. 221, 225 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies).

The evidence in the claims file prior to April 5, 2019, includes an April 2009 New Patient Geriatric Care record and the report of a May 2009 Mental Health Clinic consult, each of which document the Veteran as complaining of vivid hallucinations about his Vietnam War experience and seeing spiders on the wall.  The May 2009 mental health clinician described the Veteran's appearance and behavior as appropriate to the situation, and observed that the Veteran was oriented to person, place, time, situation and able to think abstractly with logical, clear, and relevant speech.  The provider also observed that there were no abnormal involuntary movements, psychomotor retardation or hyperactivity, overt suicidal/homicidal ideation, or active perceptual distortions, and that the Veteran's attention, concentration, and memory function were intact.  The Veteran's mood was "mildly depressed" and his affect was "labile."  The diagnosis was "R/O PTSD."

In March 2010, the Veteran underwent a VA PTSD examination.  During the examination the Veteran complained of recurrent/intrusive thoughts related to inservice events, nightmares, sleep impairment, exaggerated startle response, and trouble with concentration and memory.  He also reported having auditory hallucinations, although not persistent.  He reported that he retired from the Air Force in 1979 and thereafter worked as a real estate broker for 16 years, and that he had not worked since 1996.  He added that he had been receiving Social Security retirement since age 62.  The Veteran also reported that he was married and had been since 1996, and that he enjoyed watching television and "a few friendships at work."  

Mental status examination found the Veteran to be alert and oriented to person, time, and place, and cooperative.  Mood was dysphoric, affect was constricted, and speech was slow.  Thought processes and content were "unremarkable," and immediate, short-term, and long-term memory was normal.  There were no suicidal or homicidal thoughts, and no delusions.  The diagnosis was PTSD, which the examiner averred did not result in total occupational and social impairment.  The examiner added that there was no inappropriate behavior or problem with activities of daily living.

Thereafter, VA psychiatric treatment records describe the Veteran as fully alert and oriented, with no delusions, hallucinations, or illusions, and no suicidal or homicidal thoughts.  See VA Mental Health Clinic records dating from 2009 to 2017.  See also VA Geriatric Care records dated in February 2018, which describe the Veteran as presenting, unaccompanied and in no apparent distress, for his appointment.  

In correspondence received by VA in August 2017, the Veteran stated that he had had "persistent hallucinations since Vietnam, and especially after leaving Vietnam."  He further averred that "on any given day, I will see, hear, and/or feel things that are not there. This happens on a daily basis, about 4 or 5 times a day. They never go away. I experience them several times a day - every day of my life. I would call that 'persistent' hallucinations."  The Veteran recalled that his spouse had not been allowed to accompany him into the March 2010 PTSD examination, and added: 

I do not know WHY the VA examiner stated that I had reported that they were not persistent. Perhaps I didn't hear him clearly (because I do have a problem hearing which makes it difficult for me to function in daily normal activities, per VA's own audiologist). Perhaps I wasn't concentrating or focusing on what he said, due to my PTSD problems. I do have difficulty concentrating. Perhaps I didn't even say that, at all. All I know is this: My hallucinations are auditory, visual, and sensory; they were persistent at the time of my VA C & P exam for PTSD back in 2010 (I think), and they still are persistent to this very day. They began while I was still in Vietnam.

In April 2019, the Veteran was afforded another VA PTSD examination, during which he reported that he was married and positively engaged with his wife and 4 kids.  He complained of a decline in his memory that had increased his social isolation and said that he no longer attended church; but his wife reported that the Veteran was still engaged with others outside the home, adding that the Veteran "will go out to eat with fellow veterans from the Air Force one time per month."  The Veteran stated that he was taking medications but had not seen anyone in mental health in at least two years.  The examiner noted that the Veteran appeared depressed but oriented on all spheres, although he would often look to his wife to clarify statements and memories and appeared unsure of his statements.

Clinical symptoms were identified as depressed mood, anxiety, suspiciousness, memory loss for names of close relatives, own occupation, or own name, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and persistent delusions or hallucinations.  The examiner added, "the memory loss would be solely attributed to the neurocognitive disorder and the other symptoms are attributed to the PTSD (depression, anxiety, suspiciousness, disturbances of motivation and mood, and social impairments.)."

As stated before, in a June 2019 rating decision the RO increased the rating for the service-connected PTSD from 70 percent to 100 percent effective April 15, 2019; the date of the VA examination.  The RO advised that the 100 percent rating was based, inter alia, on persistent hallucinations and persistent delusions.

Thereafter, in September 2020, the Veteran and the appellant submitted a letter dated August 17, 2020 from Dr. K.S.H., who documented the Veteran's spouse as stating that the Veteran's PTSD "caused him to be angry; paranoid; have daily persistent delusions, daily persistent hallucinations, and nightmares where people were trying to harm him or their family, among several other frightening things since even before they were married, in 1996."  

In addition to the foregoing, the Veteran and the appellant also submitted a copy of the March 8, 2010 VA PTSD examination report, upon which the Veteran and his spouse had written "I have near constant delusions and hallucinations now.... they were persistent in 2010 and are more persistent now."  See, e.g., correspondence received by VA in September 2020.  The Board's failure to address these annotations on the March 8, 2010 VA examination report is the specific and only problem with the February 2020 Board decision that the parties expressed in their JMPR.  

Based on the totality of the evidence, the Board finds that the Veteran's PTSD was not productive of total psychiatric impairment prior to April 5, 2019.  On the contrary, the Veteran was uniformly described by persons outside the home (including psychotherapist, podiatrists, VA geriatric clinicians, private outpatient and inpatient treatment providers, and VA examiners), as fully alert and oriented and exhibiting no evidence of gross impairment in thought processes or communication or grossly inappropriate behavior.  The Veteran was also fully involved with his family and participating in social gatherings with a few friends.  Indeed, medical records dated as recently as August 2018 document the Veteran (and his spouse) as admitting that the Veteran was still driving a motor vehicle, including to his doctor appointments.  See also VA hospital records dated in January 2017, which note that the Veteran was being discharged from the Emergency Department unaccompanied, alert, oriented, and ambulatory to home in his own private motor vehicle.  See also VA medical records dating from 2011 to 2015, which describe the Veteran as tending to his affairs outside the home "unaccompanied;" traveling cross country; and driving.  This clearly is not demonstrative of total psychiatric impairment.  

As for the Veteran's contention that he was having constant delusions and hallucinations that "were persistent in 2010 and are more persistent now," the Board finds it significant that the Veteran, who before 2019 was uniformly described by clinicians as alert and oriented, did not object to the examiner's determination that he was not having persistent hallucinations until more than 7 years after that assessment.  Moreover, the Veteran's subsequent claim of persistent hallucinations and delusions since 2010 is inconsistent with all clinical assessments, then and now, of the Veteran as fully alert and oriented with no delusional thinking, hallucinations, or illusions.  See, e.g., VA psychiatric treatment records dating from 2009.  Based all of the evidence of record, the Board does not find the Veteran's relatively recent assertion of persistent hallucinations since 2010 to be credible, especially as it contradicts the Veteran's own prior report during that time period.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of... inconsistent statements...").  

This is not to say that the Veteran's PTSD was not productive of hallucinations (or even delusions) in 2010 or thereafter.  Rather, the Board is not persuaded that the Veteran had had persistent delusions or hallucinations since 2010; or, as the appellant contends, since her marriage to the Veteran 1996.  See Vazquez-Claudio, 713 F.3d 112, 117.  According to the Veteran's countless treatment providers (from podiatrists to mental health providers) the Veteran was fully alert and oriented and not discernibly suffering from delusions or hallucinations until as recently as 2019.  

Even assuming, arguendo, that the Veteran was having persistent hallucinations and delusions before April 2019, there is no indication that these symptoms were productive of the impairment in disability contemplated by the highest rating of 100 percent.  See Vazquez-Claudio, 713 F.3d 112, 117.  On the contrary, according to the Veteran's own report and the medical evidence of record, the Veteran's was successfully tending to his affairs outside the home, independently and unaccompanied.  Indeed, in addition to meeting with treatment providers, the Veteran was involved in pastimes, including going to Walmart, the cinema, and monthly get-togethers with old friends.  Moreover, and according to the March 2010 examiner, the Veteran's PTSD was not productive of total occupational and social impairment, and there is no medical evidence of record to the contrary until April 2019.  Accordingly, the Board finds that the evidence of record falls short of establishing total social impairment as contemplated by Section 4.130 for a total disability rating.  Id.  Any deficiency in the Veteran's social and personal business functioning/interactions before April 2019 was adequately reflected by the 70 percent rating.   

As for the Veteran's apparently profound memory lapses in his last years, although the Veteran PTSD was productive of memory loss and he was compensated for such prior to April 5, 2019, the evidence indicates that the Veteran apparently began exhibiting severe memory loss in or around 2020, and that the that Veteran's memory problem was related to his vascular dementia.  See August 2020 letter from Dr. K.S.H.  See also April 2019 VA PTSD examiner's assertion that the Veteran's memory loss is not due to his PTSD but instead is solely attributed to the Veteran's neurocognitive [dementia] disorder.  Although the Veteran indicated that he was having some memory trouble in 2017 that he attributed to his PTSD, the Board finds the medical evidence of record, which instructs that the Veteran's memory loss of names is solely due to the Veteran's dementia, to be persuasive and dispositive as to the etiology of this symptom; especially as the opinion is shared by both the VA examiner and the Veteran's private treating physician.  The Board finds that the deficiency in memory prior to the onset of the vascular dementia was not profound and was more than adequately reflected by the 70 percent rating given the fact that impairment of short- and long-term memory is contemplated by the criteria for a 50 percent rating.   

To the degree the evidence suggests occupational impairment attributable to PTSD, the Board notes that the Veteran was successfully participating in his desired occupational pursuits, such as meeting with treatment providers, going shopping, watching television, meeting with friends, and driving despite recommendations that he not drive.  

Moreover, and as stated before, the Veteran did not have total social impairment.  Despite any interpersonal difficulties due to his PTSD, he had positive and supportive personal relationships with family members, particularly his wife.  Here the evidence clearly demonstrates that the Veteran had social impairment attributable to his PTSD, prior to April 5, 2019, but there was not total social impairment.  

The Board accordingly finds that the preponderance of the evidence is against a finding, prior to April 5, 2019, of the severity of disability contemplated by the maximum rating of 100 percent.  The criteria for an initial disability rating higher than 70 percent for PTSD prior to April 5, 2019 are therefore not met and the appeal is denied.

In so finding, the Board has considered the Veteran's disability picture and the tools available under the VASRD and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that is not contemplated by the available schedular tools used to rate his disability.

2. An initial disability rating higher than 30 percent for asthma is denied.

In a rating decision dated in August 2011, the RO granted service connection for asthma with a rating of 0 percent effective May 7, 2009.  The Veteran appealed that decision for a higher initial rating.  

In a rating decision dated in June 2014, the RO granted an earlier effective date of April 3, 2006 for the award of service connection for asthma, and then increased the rating to 30 percent effective April 3, 2006.  

In a rating decision dated in August 2016, the RO granted an earlier effective date for the award of service connection for asthma because of clear and unmistakable error and assigned a rating of 30 percent effective March 31, 2006.

In a decision dated in February 2020, the Board denied a rating higher than 30 percent for asthma; and the Veteran appealed that decision to the Court.  

In a February 2021 JMPR, the parties pointed out that the criteria for a higher 60 percent rating under Diagnostic Code 6602 may also be met if the evidence demonstrates that the Veteran's condition require intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, and then noted that "while the Board did consider the November 25, 2019, Respiratory Conditions Disability Benefits Questionnaire (DBQ) from the Veteran's private physician, it appears to have overlooked the part of that report where the physician answered "yes" when asked if the Veteran's respiratory condition required the use of oral or parenteral corticosteroid medications and then wrote the Veteran required the use of oral corticosteroids approximately three times per year."  The parties agreed that because the Board failed to consider or discuss that portion of the November 2019 private examination report, remand for "an adequate statement of reasons or bases that addresses the notation in the November 25, 2019, private DBQ" was warranted.  

The issue is whether the evidence supports a rating of 60 percent or higher for asthma.  For the reasons that follow the Board concludes that it does not. 

VA regulations specifically prescribe for evaluation of asthma under Diagnostic Code 6602, which provides for a 10 percent rating where there is FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy.  38 C.F.R. § 4.97, Diagnostic Code 6602.  A 30 percent rating where FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication.     

A 60 percent rating is warranted where FEV-1 of 41 to 55 percent predicted, or the ratio of FEV-1 to FVC is 40 to 55 percent; or there are at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required.  A 100 percent rating is warranted where FEV-1, or the ratio of FEV-1 to FVC, is less than 40 percent predicted; or there is more than one attack per week with episodes of respiratory failure; or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required.

The Board notes that asthma is excluded from the special provisions of 38 C.F.R. § 4.96(d), which directs the rating officer, when reviewing pulmonary function test results, to "use the test result that the examiner states most accurately reflects the level of disability."  As asthma is specifically excluded from this directive, the Board may use the result most favorable to the Veteran, per 38 C.F.R. § 4.7.

Turning to the relevant evidence of record, in November 2010, the Veteran was afforded a VA examination.  During the examination the Veteran complained of shortness of breath with exertion, sinus drainage, wheezing, and cough, and said that he used inhalers for breathing problems.  A chest X-ray revealed calcified right lower lobe granuloma.  Corresponding pulmonary function testing found an FEV-1 of 57 percent of predicted value before pre-bronchodilator, and 77 percent of predicted value post-bronchodilator.  His FEV-1/FVC was 88 percent pre-bronchodilator and 79 percent post-bronchodilator.  

Few treatment records, pertaining specifically to the Veteran's asthma, have been associated with the claims file since the VA examination.  

In April 2019, the Veteran was afforded another VA respiratory examination.  During the examination the Veteran complained of shortness of breath with any activity, treated with steroid inhalers.  The examiner noted that in addition to asthma, the Veteran's respiratory diagnoses included calcified granuloma of the right lung, chronic lung disease, cough with tracheobronchitis, and recurring pneumonia.  The examiner averred that the Veteran's asthma required intermittent use of inhalational bronchodilator therapy, but no oral bronchodilators, antibiotics, or outpatient oxygen therapy.  He further averred that the Veteran had not any asthma attacks with episodes of respiratory failure in the past 12 months, nor any physician visits for required care of exacerbations.  Pulmonary function testing done in conjunction with the examination found pre-bronchodilator FEV-1 of 90 percent predicted, and an FEV-1/FVC of 70 percent; and post-bronchodilator FEV-1 of 97 percent predicted, and an FEV-1/FVC of 73 percent.  The examiner added that the FEV-1/FVC most accurately reflected the Veteran's level of disability.  

A subsequent pulmonary function test performed by VA on May 9, 2019 found an FEV-1 of 78 percent, and no significant change after bronchodilator.  DLCO was normal.  The clinician interpreted the results as demonstrating "no airflow limitation; no bronchodilator response; and normal diffusing capacity."  See Pulmonary Function Note Montgomery VAMC, May 15, 2019.  

The Veteran had also submitted a DBQ from a private physician (Dr. T.A.), who noted the Veteran had recently been hospitalized in August 2019 for chronic congestive heart failure with extreme edema in the lungs.  See Respiratory Conditions DBQ, dated November 25, 2019.  This physician asserted that the Veteran suffered from numerous pulmonary conditions, including asthma, bronchiectasis, sarcoidosis, bacterial lung infection, cardiopulmonary complications, tuberculosis, Ghon's Complex with Hilar Adenopathy, granulomas, COPD, chronic bronchitis, and "often pneumonia."  There were no associated pulmonary function test findings; however, the physician stated that the Veteran had "regular use of inhaler for asthma; oral cort. used approx. 3 times/year" for "asthma; COPD; chronic bronchitis; pneumonia; etc."  The Board's failure to discuss this assertion of oral corticosteroids use approximately three times per year is the specific and only problem with the February 2020 decision that the parties expressed in their JMPR. 

Based upon a review of the evidence of record, the Board finds that the criteria for an evaluation higher than 30 percent for the Veteran's asthma are not met.  Significant weight is accorded to the findings from the three PFTs currently of record, none of which fall within the prescribed range for the next higher rating of 60 percent (FEV-1 of 40-55 percent predicted or FEV-1/FVC of 40-55 percent).  

Moreover, and as regards Dr. T.A.'s November 2019 assertion of oral corticosteroid use approximately 3 times per year, the Board finds that the statement is too ambiguous for rating of the Veteran's asthma disability.  Because Dr. T.A. discussed the Veteran's many respiratory conditions en masse, it is unclear whether the Veteran was prescribed an oral corticosteroid approximately 3 times per year specifically for his asthma.  In fact, the only thing that is clearly unambiguous about Dr. T.A.'s statement is the segmented clause that the Veteran had regular use of inhaler for asthma, which the Board notes is consistent with the Veteran's medication/prescription records.  Indeed, according to a VA treating physician, the Veteran's then recent use of an oral corticosteroid (Prednisone) was for COPD and recent upper respiratory infection.  See VA Geriatric Primary Care records dated April 10, 2019.  See also VA Geriatric Primary Care records dated in October 2010, which indicate that the Veteran's private orthopedic surgeon had given the Veteran steroids for back and neck pain.  The Board finds no corroborative evidence of 3 or more instances of oral corticosteroids for asthma specifically in any year in the evidence of record, and the appellant has not indicated that there are extant medical records.

Thus, the Board has considered the November 2019 DBQ's reference to the use of oral corticosteroids but finds this evidence non-dispositive as the examiner it is, at best conflated with other respiratory conditions, and in conflict with the remaining evidence of record.  As outlined above, reading the evidence in totality it is clear the Veteran's asthma specifically was treated with an inhaler versus the oral corticosteroids appear to have been used for treatment of other conditions, such as his COPD.  As such, the mere mention of corticosteroids cannot support a higher rating for his service-connected asthma here.

Further, the evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the expressly designated provisions at Diagnostic Code 6602. 

The Board thus finds that the preponderance of the evidence is against the claim for a rating higher than 30 percent for asthma and the appeal is denied.

3. An initial disability rating higher than 10 percent prior to September 30, 2015, for right upper extremity peripheral neuropathy is denied.

4. An initial disability rating higher than 30 percent on and after September 30, 2015, for right upper extremity peripheral neuropathy is denied.

5. An initial disability rating higher than 10 percent prior to September 30, 2015, for left upper extremity peripheral neuropathy is denied.

6. An initial disability rating higher than 20 percent on and after September 30, 2015, for left upper extremity peripheral neuropathy is denied.

In a rating decision dated in August 2011, the RO granted service connection for right and left upper extremity peripheral neuropathy with a rating of 10 percent, each, effective May 7, 2009.  The Veteran appealed that decision for a higher initial rating.  

In a rating decision dated in August 2016, the RO granted an earlier effective date of March 31, 2006 for the award of service connection based on clear and unmistakable error.

Thereafter, in a rating decision dated in June 2019, the RO increased the rating for the service-connected right upper extremity peripheral neuropathy to 30 percent effective April 11, 2019, and the rating for the service-connected left upper extremity peripheral neuropathy to 20 percent, each effective April 11, 2019.  

In a decision dated in February 2020, the Board, in pertinent part, increased the right upper extremity rating to 30 percent effective from September 30, 2015, but no earlier; and denied a rating higher than 30 percent on and after September 30, 2015.  The Board likewise increased the left upper extremity rating to 20 percent effective from September 30, 2015, but no earlier; and denied a rating higher than 20 percent on and after September 30, 2015.  The Veteran appealed that decision to the Court.  

In a February 2021 JMPR, the parties stated that the Board had failed to consider a private provider's November 2019 DBQ contention that the Veteran suffered from loss of use of upper extremities bilaterally and agreed that remand was warranted in order for the Board to provide an adequate statement of reasons or bases that discusses the notations in the November 25, 2019, private examination reports.

The issue thus is whether the evidence supports an initial compensable rating prior to September 30, 2015, and higher than 30 percent on and after September 30, 2015.  

For the reasons that follow the Board concludes that higher disability ratings for the Veteran's upper extremity peripheral neuropathy are not warranted. 

The Veteran's service-connected upper extremity peripheral has been rated under the Diseases of the Peripheral Nerves  median nerve provisions throughout the appeal.  38 C.F.R. § 4.124a.  Diagnostic Code 8515 provides for evaluation of paralysis of the median nerve.  Neuritis of the median nerve is rated under Diagnostic Code 8615, and neuralgia of the median nerve is rated under Diagnostic Code 8715.  Id.  

Under Diagnostic Code 8515, mild incomplete paralysis of the median nerve of either extremity warrants a 10 percent disability rating.  Moderate incomplete paralysis of the median nerve warrants a 20 percent (minor) or 30 percent (major) evaluation.  Severe incomplete paralysis of the median nerve warrants a 40 percent (minor) or 50 percent (major) evaluation.  Complete paralysis of the median nerve warrants a 60 percent (minor) or 70 percent (major) evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances.  38 C.F.R. § 4.124a. 

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means gentle in nature or behavior.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

Turning to the relevant evidence, in a letter dated in May 2009, a private physician (Dr. R.G.L.) stated that the Veteran had reported that he had tingling, numbness, and burning in his extremities.

In June 2010, a VA Diabetes examination found paresthesias/dysesthesia (tingling and numbness) in the upper extremities.  

Neurologic testing of the left and right upper extremities in November 2010 found intact monofilament sensation and mild inconsistent responses to pinprick sensation in the upper extremities; and the results of an EMG/NCS of the upper extremities on December 1, 2010 were "compatible with a sensri-motor peripheral neuropathy" of the left and right upper extremity.  The diagnosis was mild upper extremity peripheral neuropathy.  See November 2010 VA General Medical examination report.

VA medical records dating from 2011 advise of 5/5 motor strength and good hand grasp.

Additionally, the results of EMG/NCS testing of the upper extremities in August 2012 was described as "consistent with mild distal sensory motor polyneuropathy primarily axonal."  See electrodiagnostic study from Baptist Health Neurological Clinic, dated August 16, 2012.  

In September 2015, a private Urgent Care physician (Dr. T.A.) checked the box next to "Severe" for left and right upper extremity constant pain, intermittent pain, dyesthesia and paresthesia, and numbness, and added that the Veteran had "pain, sometimes excruciating pain, tingling, numbness, weakness, partial paralysis, atrophy, swelling, and fatigue."  On the other hand, Dr. T.A. checked the box next to "normal" for left and right median nerve.  Dr. T.A. acknowledged that EMG testing was last done in October 2014 "by other private physician."  See VA DBQ report completed by Dr. T.A. on September 30, 2015.

In an accompanying narrative report, Dr. T.A. stated that the Veteran "suffers from numerous medical conditions, all of which combine to cause him functional loss of use of his upper (b/1) and lower (b/1) extremities..."  See Dr. T.A.'s September 30, 2015 letter and Summary Report for Medical Conditions.  Dr. T.A. elucidated that the Veteran "does not have normal strength in his upper extremities, including his grip. He cannot grasp or manipulate small objects (such as coins or screws) or use certain tools, like a screwdriver," but Dr. T.A. then said that the Veteran "uses his hands and arms to push himself up from a chair."  Dr. T.A. then averred: "Due to [the Veteran's] numerous medical conditions, there is functional impairment of all four extremities such that no effective function remains other than that which would be equally well served by amputation with prosthesis. He has limited grasping and manipulation in his upper extremities, bilaterally."

VA Geriatric Medicine records dating from 2016 advise of "motor strength 5/5 all ext, good hand grasps."

In April 2019, the Veteran was afforded another VA Peripheral Nerves, albeit non-diabetic, examination.  During the examination the Veteran complained of pain, numbness, tingling and pain in the upper extremities, which he regarded as moderate.  The examiner noted that the 2012 EMG had found bilateral carpal tunnel syndrome mild distal sensory motor polyneuropathy primarily axonal.  Symptoms were identified as constant moderate pain, and moderate paresthesias and/or dysesthesias and numbness.

Clinical assessment in April 2019 revealed moderate incomplete paralysis of the left and right median nerve; mild incomplete paralysis of the left and right ulnar nerve; and mild incomplete paralysis of the long thoracic nerve.  There were no trophic changes.  

Thereafter, Dr. T.A. provided another DBQ report, this time dated in November 2019.  In this report Dr. T.A. again checked the box next to "Severe" for left and right upper extremity constant pain, intermittent pain, dyesthesia and paresthesia, and numbness, adding: "He has dull pain AND excruciating pain, intermittently. Thus, I checked both. Mainly, he has burning, numbness, tingling. Cannot feel tops of feet toes, BL."  Dr. T.A. went on to state that the Veteran "has loss of use of both upper AND lower extremities. Remaining functions are same as amputations prostheses for all 4 extrms, due in part to PN, & stroke, OA, Foot Drop, CTS," and reiterated "Due to PN other SC conditions, he has lost use of both upper AND lower extremities. Remaining functions would be equally well-served by 4 amputations with 4 prostheses. His remaining function, or use, is to same degree as amputations with prostheses."  See VA DBQ report completed by Dr. T.A. on November 25, 2019.  Dr. T.A. did not perform EMG testing, instead staying that the results of prior studies were attached.  However, Dr. T.A.'s November 2019 DBQ was not accompanied by any EMG or nerve conduction velocity reports.  

In a letter dated in August 2020, another private physician (Dr. K.S.H.) averred that the Veteran had lost the use of his upper extremities such that he has no grip strength in his bilateral hands, and that much of this was due to his peripheral neuropathy and bilateral upper hemiparesis.  Dr. K.S.H. elaborated that the muscles in the Veteran's arms were extremely weak and atrophied, and that all of the muscles that move his shoulder, arm, forearm, wrist, and hand were diseased," mainly due to a combination of multiple strokes, DMII, OA affecting the underlying joints, PN, and his required sedentary lifestyle."  Dr. K.S.H. also averred that the Veteran "has severe bilateral CTS and cervical radiculopathy," and "OA in all major and minor joints, including all fingers and thumbs."  Dr. K.S.H. then tersely stated, "he has severe PN," and said that he agreed with Dr. T.A.'s opinion that the Veteran "would be equally well-served by prostheses, because the remaining function of his upper extremities is no better than what they would be if replaced by prostheses."

As stated before, the issue at this time is whether the evidence supports an initial compensable rating prior to September 30, 2015, and higher than 30 percent on and after September 30, 2015.  

-	Prior to September 30, 2015

On review of all of the relevant evidence, the Board finds that the Veteran's right and left upper extremity peripheral neuropathy was manifested by at most mild incomplete paralysis of the median nerve prior to September 2015.  Although the Veteran was experiencing tingling and numbness, treatment providers noted that the Veteran had 5/5 motor strength and "good grasp."  Additionally, electrodiagnostic testing found at most mild impairment, and the Board finds this evidence, which is based on reflexive nerve signal responses and is completely objective, to be dispositive as to the severity of the Veteran's upper extremity diabetic pain/neuropathy.  The preponderance of the evidence is thus against the appeal for an initial rating higher than 10 percent prior to September 30, 2015, for right and left upper extremity peripheral neuropathy and the appeal is denied.

-	Since September 30, 2015

As for a rating higher than 30 for right upper extremity peripheral neuropathy and higher than 20 percent for left upper extremity peripheral neuropathy percent since September 2015, the Board finds that the Veteran's upper extremity peripheral neuropathy symptomatology more closely comported with a finding of at most moderate incomplete paralysis of the median nerve.  Again, treating clinicians since 2015 describe the Veteran as having 5/5 motor strength in all extremities and good hand grasps, and a VA examination done on September 30, 2015 (and again as recently as 2019) found at most moderate incomplete paralysis of the affected nerve(s).  The Board finds the VA examination evidence to be especially compelling, as the examiners' focused and reported solely on the manifestations and symptoms of the upper extremity peripheral neuropathy without regard to other overlaying illnesses.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same).  

As for Dr. T.A.'s September 2015 and November 2019 suggestion (and Dr. K.S.H.'s concurrence) that the Veteran's upper extremity peripheral neuropathy was tantamount to loss of use of the upper extremities, the Board is not persuaded, particularly as both physicians acknowledged that there numerous and grievous other disorders, including the Veteran's strokes, dementia, multiple joint arthritis, and cardiopulmonary disease that was contributing to the loss of use of the Veteran's upper extremities.  Id.  

The Board further finds that Dr. T.A.'s September 2015 report is not particularly reliable because it contains internally contradictory statements, with Dr. T.A. initially marking all of the incomplete paralysis boxes as Severe, but then subsequently indicating that the affected nerve was "normal."

The Board accordingly finds that the preponderance of the evidence is against a finding of more than moderate incomplete paralysis of the upper extremities and the appeal is denied.

In so finding, the Board notes that the evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the rating schedule.  On the contrary, the Board finds that the severity and characteristics of the Veteran's upper extremity peripheral neuropathy picture is entirely contemplated by the Rating Schedule.

7. A compensable disability rating prior to November 7, 2014, for bilateral hearing loss is denied.

8. A 10 percent rating from November 7, 2014, to April 17, 2019, for bilateral hearing loss effective is granted.

In a rating decision dated in August 2011, the RO continued a rating of 0 percent rating for bilateral hearing loss.  The Veteran appealed that decision.  

In a rating decision dated in June 2019, the RO increased the rating from 0 percent to 20 percent effective April 17, 2019.  

In a decision dated in February 2020, the Board, in pertinent part, denied the issue of a compensable disability rating for bilateral hearing loss disability prior to April 17, 2019; and the Veteran appealed that decision to the Court.  

In a February 2021 JMPR, the parties and noted that the Board had overlooked audiological findings in a November 7, 2014, private audiological evaluation report which contains reported pure tone thresholds and Maryland CNC word recognition scores suggestive of the criteria for a 10 percent rating, and agreed that remand was warranted for the Board to "provide an adequate statement of reasons or bases that discusses the findings in the November 7, 2014, private audiological evaluation report."  The parties requested that the Court dismiss the issue of a rating in excess of 20 percent for bilateral hearing loss since April 17, 2019.

The issue in this appeal is whether a disability rating higher than 0 percent prior to April 17, 2019 is warranted.  

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In addition to dictating objective test results, a VA audiologist must describe the functional effects caused by a hearing disability.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  38 C.F.R. § 4.85(b).  The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d).  

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86.  See 38 C.F.R. § 4.85(c).  

Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85(e).  

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater; or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b).

Turning to the evidence, the claims file includes the results of audiology testing done in April 2009 (and again in November 2011) by a private provider.  See Audiological Results reports from The Otorhinolaryngology Associates, dated April 24, 2009 and November 21, 2011.  Unfortunately, this evidence does not conform to VA's requirements for evaluating hearing impairment in that the numerical values for pure tone results at the frequency for 3000 Hz were not reported and it does not reflect that the Maryland CNC controlled speech discrimination test was used to obtain speech recognition scores.  38 C.F.R. § 4.85(a).  

An August 2010 VA Audiology examination reveals that the Veteran complained of not being able to hear conversations clearly, tv or people on the phone.  He elaborated that he cannot hear people talking and that he has to ask them to repeat themselves; and said that this causes frustration for others and himself, including in his marriage and with his kids.  He added that he could not hear on the phone at times.  He also reported that he had an 8-year-old child and a 7-year-old child, and their loudness and squeals hurt his ears, and that he "cannot hear the tv unless it is loud which hurts his wife's ears."  38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447.  The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

Hertz	1000	2000	3000	4000	Avg CNC

Right ear	15	55	50	55	43.75

Left ear	15	30	45	40	32.5

Speech discrimination scores were 96 percent for each ear.  

On November 7, 2014, the Veteran underwent testing by a private audiological evaluation reveals that the Veteran reported difficulty hearing and asking others to repeat.  38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447.  The test was administered at a renowned university's Speech and Hearing Clinic by a licensed audiologist, and the Maryland CNC was discussed and administered.  The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

Hertz	1000	2000	3000	4000	Avg CNC

Right ear	45	95	85	85	77.5

Left ear	45	70	85	80	70

Speech discrimination scores were 80 percent for each ear.  

[The Board's failure to address this November 2014 evidence is the specific and only problem with the February 2020 decision that the parties expressed in their JMPR.]

Applying the results of the August 2010 evaluation to Table VI, the findings yield a numeric designation of Level I in both ears.  Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.  

However, applying the results of the November 2014 evaluation to Table VI, the findings yield a numeric designation of Level V for the right ear and Level IV for the left ear.  Entering the resulting bilateral numeric designation of Level V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100.  

Accordingly, and based on the evidence above, a 10 percent rating for bilateral hearing loss effective November 7, 2014 (the date of the clinical findings) to April 17, 2019 (the already existing effective date of the 20 percent rating) is established.  

As for a rating higher than 0 percent prior to November 7, 2014, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficulty hearing people and having to ask for repetition; however, 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, 3 Vet. App. 345.  

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).  The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).  The Board finds the Veteran's hearing loss is fully capable of evaluation under the rating schedule.

Accordingly, the preponderance of the most probative evidence prior to April 17, 2019, supports a 10 percent rating for bilateral hearing loss effective November 7, 2014, but not before; and to this extent the appeal is granted.

9. An initial compensable rating prior to September 30, 2015, for gastroesophageal reflux disease (GERD) is denied.

In a rating decision dated in August 2011, the RO granted service connection for gastroesophageal reflux disease, linear esophageal ulcers, and Barrett's esophagus (hereinafter GERD) with a rating of 0 percent effective May 7, 2009.  The Veteran appealed that decision for a higher initial rating.  

In a rating decision dated in August 2016, the RO granted an earlier effective date of March 31, 2006 for the award of service connection based on clear and unmistakable error.

Thereafter, in a rating decision dated in June 2019, the RO increased the rating for the service-connected GERD disability to 10 percent effective April 11, 2019; and in a decision dated in February 2020, the Board made the 10 percent rating effective from September 30, 2015, but not before; and denied a rating higher than 10 percent.  The Veteran appealed that decision to the Court.  

In a JMPR, the parties stated that the Board had failed to address the part of the September 2015 examination that noted that the Veteran reported having symptoms of pyrosis and regurgitation "for years," and agreed that remand was warranted in order for the Board to provide an adequate statement of reasons or bases and discuss the retrospective aspect of the September 2015 private examination report when discussing whether the Veteran was entitled to a compensable rating for GERD prior to September 30, 2015.  The parties requested that the Court dismiss the issue of a rating in excess of 10 percent for GERD from September 30, 2015.

The issue thus remaining is whether the Veteran's GERD met the criteria for an initial compensable rating prior to September 30, 2015.  

The Veteran's service-connected GERD disability has been rated under Diagnostic Code 7346 throughout the appeal period.  

Ratings under Diagnostic Codes 7301 to 7329 inclusive, 7331, 7342 and 7345 to 7348, inclusive, will not be combined with each other.  38 C.F.R. § 4.114.  A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation.  Id. 

The Board notes that governing regulations provide that there are diseases of the digestive system, particularly with the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding.  38 C.F.R. §§ 4.14, 4.113.

The Rating Schedule does not provide a specific diagnostic code for evaluation of GERD, so the Veteran's GERD has been rated, by analogy, under the hiatal hernia provisions at Diagnostic Code 7346 for hiatal hernia.  See 38 C.F.R. § 4.20, which provides that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  

Under Diagnostic Code 7346, a 10 percent evaluation is warranted when there are two or more of the symptoms required for a 30 percent evaluation, but with less severity.  38 C.F.R. § 4.114.  A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.  

For purposes of evaluating conditions under 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  38 C.F.R. § 4.112.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. The pertinent evidence in this case includes clinical findings from a VA examination in November 2010, where the Veteran reported taking Nexium for control of heartburn.  

Turning to the evidence of record, in correspondence received by VA in March 2006, the Veteran said that he had to sleep in an upright position to stop the stomach acid from rolling back up into his esophagus and throat.

In April 2010, an esophagogastroduodenoscopy (EGD) was conducted.  The diagnosis was Barrett's metaplasia, extensive, indefinite for dysplasia; background of active reflux like esophagitis, mild; and chronic gastritis, mild to moderate.  The report did not elaborate regarding complaints or symptoms.  

VA medical records dating from 2009 to 2015 simply note that the Veteran was taking Nexium for GERD and "doing well on Nexium."  See, e.g., April 2009 VA Geriatric Physician Comprehensive Examination report.  

In correspondence (a Notice of Disagreement) received by VA in August 2012, the Veteran stated that he had "pyrosis and regurgitation accompanied by the pain and, at times, pneumonia."  He then stated, "I have symptoms of pyrosis and regurgitation with substernal and shoulder pain."

In September 2015, the Veteran underwent a physical examination by a private Urgent Care physician (Dr. T.A.).  Dr. T.A. said that the Veteran reported heartburn, especially at night and when he ate greasy foods, and that the contents of his stomach sometimes flowed back into his mouth, causing pain in his chest and stomach.  The Veteran reported having had those symptoms for years, and added that though he took Nexium, the symptoms still occurred 3 or 4 times per month.  Dr. T.A. stated, "what he is describing are symptoms known as pyrosis and regurgitation, resulting in substernal pain."  See medical opinion from Vaughn Urgent Care, dated September 30, 2015.  

Subsequently dated VA treatment records do not otherwise indicate gastrointestinal symptoms that are more severe than those recorded in the previous examinations.  

In April 2019, the Veteran was afforded a VA examination.  During the examination the Veteran reported symptoms of reflux, regurgitation, and substernal arm pain, but did not indicate the frequency of episodes or their duration.  The examiner noted that the Veteran did not have an esophageal stricture, spasm of esophagus (cardio spasm or achalasia), or an acquired diverticulum of the esophagus.  There were no other pertinent physical findings, complications, conditions, or signs/symptoms.  The examiner concluded that the Veteran's GERD did not impact the Veteran's ability to work; but acknowledged that there was a worsening of symptoms.  

Based on the 2019 report, the RO increased the rating for GERD to 10 percent, from April 11, 2019 (see June 2019 Rating Decision), and in a decision dated in February 2020, the Board made the 10 percent rating effective from September 30, 2015, but not before.  

The issue now on appeal is whether the evidence supports a compensable rating for gastroesophageal reflux disease (GERD) prior to September 30, 2015.  On re-review of the evidence the Board finds that it does not.

The evidence of record prior to September 30, 2015, does not show that the Veteran experienced at least two of the following symptoms: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, or considerable impairment of health.  While heartburn (pyrosis) was reported during the November 2010 VA examination, the report was negative for any other specific symptoms.  

Additionally, and with regard to the Veteran's August 2012 assertion that he was having pyrosis, regurgitation, and substernal and shoulder pain, the Veteran did not describe his symptoms but instead merely replicated the language in the rating schedule at Diagnostic Code 7346.  Moreover, there is no record of complaints or symptoms in the contemporaneously written medical records.  This is significant since those records documented, often verbatim, the Veteran's self-report of any problems that he was having.  The Board accordingly finds that the Veteran's August 2012 recitation of the diagnostic criteria, without more, is not useful for rating purposes.  Given the enormity of the Veteran's medical records, not to mention the fact that the Veteran had undergone surgery and was being monitored for heart disease, it is reasonable to assume that if the Veteran was having pyrosis and/or regurgitation accompanied by substernal or arm or shoulder pain, this surely would have been reported by the Veteran and documented in medical records prior to September 2015, just as the Veteran's other complaints were.  See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist). 

In this regard, the Board particularly acknowledges that part of the September 2015 examination that noted that the Veteran reported having symptoms of pyrosis and regurgitation "for years," but finds that this mere mention of symptoms "for years" is too ambiguous for rating purposes and is outweighed by the abject lack of complaints or symptoms, prior to September 30, 2015, in the medical evidence of record.  Instead, the medical evidence of record, which is staggering, does not relay any GERD complaints or symptoms; and there is no indication that there are extant medical records regarding the Veteran's GERD.  Neither the Veteran, nor the appellant, nor Dr. T.A. (the author of the September 2015 opinion), has made such a contention.

As for the Veteran's regimen of over-the-counter medication (Nexium) to control his symptoms, the Board is mindful that a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  The evidence, however, does not demonstrate additional symptomatology that would substantiate a compensable rating without medication.  

The Board has also considered rating the Veteran's service-connected GERD under other diagnostic codes pertaining to the digestive system, which provide for a rating greater than 10 percent.  However other analogous ratings are either not applicable to the Veteran's case or do not offer a higher disability rating based on the symptomatology exhibited.   In other words, there is no evidence of ulcers, hypertrophic gastritis, postgastrectomy syndromes, liver disease, ulcerative colitis, diverticulitis, pancreatitis, or hepatitis.  Moreover, the Veteran does not have splenomegaly, minor weight loss, or incapacitating episodes, and his GERD was not productive of considerable impairment of health.  Therefore, a higher rating under some other diagnostic code is not in order.  See 38 C.F.R. § 4.114, Diagnostic Codes 7304-7308, 7312, 7323, 7345, 7347.

The Board has considered the Veteran's disability picture and the tools available under the VASRD and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that is not contemplated by the available schedular tools used to rate his disability.

The preponderance of the evidence is thus against the claim for a compensable rating for GERD prior to September 30, 2015 and the appeal is denied.  

10. An initial compensable disability rating for residuals of basal cell carcinoma (BCC) excision is denied.

In a rating decision dated in August 2011, the RO granted service connection for "basal cell carcinoma of the cheek, precancerous skin itchy skin, skin tumor, and skin rash" with a rating of 0 percent effective May 7, 2009; and separately granted service connection for "scars of the right foot, neck and due to an appendectomy" with a rating of 0 percent effective May 7, 2009.  The Veteran appealed for higher initial ratings.  

In a rating decision dated in July 2014, the RO granted an earlier effective date of April 3, 2006 for the award of service connection; and in a rating decision dated in August 2016, the RO granted an even earlier effective date of March 31, 2006 for the award of service connection based on clear and unmistakable error.

Thereafter, in a rating decision dated in August 2019 (under the new AMA system), the RO granted service connection for left neck scar with a rating of 10 percent effective April 11, 2019.  The Veteran filed a VA Form 10182-Board Appeal to that decision.  

In a decision dated in February 2020, the Board denied the issue of a compensable disability rating for right foot, neck, and appendectomy scars, and the issue of a compensable disability rating for residuals of BCC excision.  The Veteran appealed that decision to the Court.  

In a decision dated January 4, 2021, the Board dismissed the AMA appeal for "an initial evaluation in excess of 10 percent for left neck scar" due to the Veteran's death.

In a February 2021 JMPR, the appellant waived her appeal of the Board's February 2020 denial of a compensable disability rating for right foot, neck, and it was dismissed by the Court.  

Additionally, and regarding basal cell carcinoma residuals, the parties noted that an April 11, 2019 VA Skin Diseases DBQ "noted that the Veteran's BCC residuals impacted 5% of the total body area and 5% of exposed areas"; pointed out that the General Rating Formula for the Skin for Diagnostic Code 7806, 7809, 7813-7816, 7820-7822, and 7824 provided for a 10% rating is warranted for "[a]t least 5 percent, but less than 20 percent, of exposed areas affected; and noted that the Board had "failed to discuss the notation in the April 2019 VA examination report as well as the aforementioned diagnostic codes."  The parties agreed that remand was warranted in order for the Board to provide an adequate statement of reasons or bases "that addresses the notation in the April 2019 VA examination report and the criteria in the diagnostic codes noted above when discussing whether a higher rating is warranted for the Veteran's BCC condition."

The issue thus remaining is whether a compensable rating for BCC excision residuals is warranted.  

In this regard, the Board notes that in its August 2011 rating decision, the RO explained that the Veteran had had skin cancer with basal cell removal from the right side of his neck in 1972, and then identified the service-connected BCC excision residuals disability as consisting of a scar on the right side of the neck and a small scar on the left maxillofacial area.

At the time of the 2006 claim, Diagnostic Code 7818 provided for evaluation of malignant skin neoplasms (other than malignant melanoma) as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function.  See Diagnostic Code 7818, as in effect prior to October 23, 2008.

Under Diagnostic Code 7800 (Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck), a 10 percent rating is warranted for one characteristic of disfigurement.  A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.  A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement.  An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  See 38 C.F.R. § 4.118, Diagnostic Code 7800, as in effect since August 30, 2002.

The eight characteristics of disfigurement are:

(1) scar 5 or more inches (13 or more centimeters) in length.

(2) scar at least one-quarter inch (0.6 centimeters) wide at widest part.

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

(4) scar adherent to underlying tissue.

(5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters).

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

(7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters).

(8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).

See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1).

The skin regulations were amended effective October 23, 2008, to provide for evaluation of burn scars under Diagnostic Codes 7800-7802.  38 C.F.R. § 4.118, effective October 23, 2008.  Diagnostic Code 7803 was eliminated.  The provisions of Diagnostic Codes 7804-7805 remained essentially unchanged.  

Under Diagnostic Code 7801 (scars - other than those of the head, face, or neck - that are deep and nonlinear) a 10 percent rating is warranted if the area or areas affected is/are at least 6 square inches (39 sq. cm), but less than 12 square inches (77 sq. cm), in size. Higher ratings of 20, 30, and 40 percent are warranted if the affected area or areas exceed 12 square inches (77 sq. cm), 72 square inches (465 sq. cm), and 144 square inches (929 sq. cm), respectively.  A deep scar is one associated with underlying soft tissue damage. 

Similarly, under Diagnostic Code 7802 (scarsother than those of the head, face, or neckthat are superficial and nonlinear) a 10 percent rating is warranted if the area or areas affected is/are at least 144 square inches (929 square centimeters) or greater.  A superficial scar is one not associated with underlying soft tissue damage.  If multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 

Under Diagnostic Code 7804 (scars, unstable or painful), a 10 percent rating is warranted for one or two scars that are unstable or painful.  Three or four scars that are unstable or painful warrant a 20 percent evaluation, and five or more scars that are unstable or painful warrant a 30 percent evaluation.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 

Under Diagnostic Code 7805, scars and other effects of scars not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. 

The skin regulations were again amended effective August 13, 2018, by adding paragraph (a) regarding systemic treatment, and paragraph (b) regarding the combination of skin disorders, and by adding a General Rating Formula for the Skin.  

Turning to the relevant evidence of record, in November 2010, the Veteran was afforded a VA examination.  During the examination he complained of a periodically recurring skin lesion over the occipital area of the scalp, which he reported that biopsy had shown was inflammation and not skin cancer.  He denied any other skin problems.  He added that he was seeing a dermatologist for the scalp lesion and his history.  The examiner noted that the Veteran had a history of a lesion of the right neck during service that was initially treated as a fungal infection with griseofulvin and later biopsied as basal cell carcinoma multifocal, and that the BCC was removed from the right side of the neck in 1972.  Physical examination found a well-healed linear scar on the right lateral neck that measured 1-1/4 inch and was nontender without any keloid formation.  There was no indication of inflammation, edema, disfigurement or limitation of motion/function, or any other pertinent physical findings, complications, conditions, or related signs/symptoms.  The examiner added that the scalp lesion was due to folliculitis and inflammation and not related to service.  The diagnosis was BCC of the skin removed in 1972 from the right side of the neck.  

In April 2019, the Veteran was afforded VA Scar and Skin diseases examinations.  Physical examination found a scar on right side of the neck which measured 3 cm by 0.5 cm. and "small brownish/red rash to abdomen and back."  There was also an occipital scalp lesion, which the examiner advised "occurred after the service-connected conditions and is not related to the other skin conditions."  The right neck scar was not painful or unstable with frequent loss of covering of skin over the scar or underlying tissue damage.  There was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue, abnormal pigmentation, or texture, gross distortion, or asymmetry of facial features or visible or palpable tissue loss, and no limitation of function or other disabling effects such as muscle or nerve damage.  The examiner noted that the rash to abdomen and back encompassed less than 5 percent of the total body and less than 5 percent of exposed areas, as did the occipital scalp lesion.  The examiner added that the Veteran's multiple skin conditions [which ostensibly included the right neck BCC excision scar, the small brownish/red rash to abdomen and back, and the occipital scalp lesion] affected 5 percent of the total body and 5 percent of exposed areas (hands, face, and neck).

Applying the Veteran's symptomatology to the rating criteria, the Board finds that a compensable rating is not warranted for the Veteran's service-connected residual neck scar, status post BCC excision under Diagnostic Code 7800.  The VA examinations and medical treatment records overwhelmingly reflect that the Veteran does not have any of the eight characteristics of disfigurement, visible or palpable tissue loss, or gross distortion or asymmetry of facial features.  Based on the VA examination reports, the maximum width of the right neck scar, alone, was 0.5 centimeters, and the maximum length was 3 centimeters, neither of which satisfies the criteria for characteristics of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800.  

Nor does the evidence show that the BCC scars warrant a compensable disability rating under any other diagnostic codes available under 38 C.F.R. § 4.118 for assessing scars, as there is no evidence of burn scars; limitation of motion due to scars; or scars covering an area of 144 square inches.  Thus, diagnostic codes for rating these manifestations are not for application.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. 

The Board further finds that although the April 2019 examiner concluded that that the Veteran's "multiple skin conditions" impacted 5 percent of the total body area and 5 percent of exposed areas, a compensable rating under the General Rating Formula for the Skin is not for application because Diagnostic Code 7818 does not provide for evaluation under the General Rating Formula for the Skin.  

Moreover, the Veteran's BCC excision residuals disability was not diagnosed as productive of productive of dermatitis or eczema (Diagnostic Code 7806); Discoid lupus erythematosus (Diagnostic Code 7809); dermatophytosis (ringworm: Of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium (onychomycosis); of inguinal area (jock itch), tinea cruris; tinea versicolor), Bullous disorders (including pemphigus vulgaris, pemphigus foliaceous, bullous pemphigoid, dermatitis herpetiformis, epidermolysis bullosa acquisita, benign chronic familial pemphigus (Hailey-Hailey), and porphyria cutanea tarda), or psoriasis; (Diagnostic Codes 7813-7816); infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases), cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis). or papulosquamous disorders not listed elsewhere (including lichen planus, large or small plaque parapsoriasis, pityriasis lichenoides et varioliformis acuta (PLEVA), lymphomatoid papulosus, mycosis fungoides, and pityriasis rubra pilaris (PRP)) (7820-7822); or diseases of keratinization (including icthyoses, Darier's disease, and palmoplantar keratoderma) (7824), so evaluation under Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824 and thereby the General Rating Formula for the Skin is not warranted.

Indeed, and with respect to the evaluation of BCC excision residuals, the Board observes that under Diagnostic Code 7818, the only avenue for the assignment of an evaluation that is not based on scars or impairment of function is where there is evidence of therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, x-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision.  The record reflects that treatment at the time of the diagnosis of BCC consisted of excision of the growth on the Veteran's right neck.  There is no indication that systemic chemotherapy, x-ray therapy, or surgery more extensive than wide local excision was necessary.  Thus, there is no basis for the assignment of a compensable rating for BCC other than that based on scars or impairment of function.  

Finally, the Board has considered the Veteran's disability picture and the tools available under the VASRD and finds that there is no evidence of symptoms or impairment related to the Veteran's condition that is not contemplated by the available schedular tools used to rate his disability.  

The preponderance of evidence is thus against the claim and the appeal is denied.

REASONS FOR REMAND

1. An initial disability rating for the service-connected lumbar spine disability higher than 20 percent prior to September 30, 2015, is remanded.

2. An initial disability rating for the service-connected lumbar spine disability higher than 40 percent from September 30, 2015, to April 10, 2019, is remanded.

3. An initial disability rating for the service-connected lumbar spine disability higher than 20 percent on and after April 11, 2019, is remanded.

In a rating decision dated in August 2011, the RO granted service connection for kyphosis, degenerative joint disease lumbar spine with a rating of 10 percent effective May 7, 2009.  The Veteran appealed that decision for a higher initial rating.  

In a rating decision dated in July 2014, the RO granted an earlier effective date for the award of service connection of April 3, 2006; and in a rating decision dated in August 2016, the RO granted an even earlier effective date for the award of service connection of effective March 31, 2006 based on clear and unmistakable error.

In a rating decision dated in June 2019, the RO increased the rating to 40 percent effective September30, 2015, followed by a rating of 20 percent from April 11, 2019.

In a decision dated in February 2020, the Board granted an initial rating of 20 percent prior to September 30, 2015; denied a rating higher than 40 percent from September 30, 2015 to April 10, 2019; and denied a rating higher than 20 percent since April 11, 2019, for the service-connected lumbar spine disability.  The Veteran appealed that decision to the Court.  

In a JMPR, the parties noted that the Board had overlooked the notation in a November 21, 2019, private examination report finding that the Veteran had "[u]nfavorable ankylosis of the entire spine (cervical and thoracolumbar);" pointed out that this was significant because a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine under Diagnostic Code  5242; and agreed that remand was warranted in order for the Board to provide an adequate statement of reasons or bases that discusses the notation in the November 21, 2019, private examination report, when discussing whether a higher rating is warranted for the Veteran's lumbar spine disability for the period since April 11, 2019.  

Parenthetically, the Board notes that the Veteran was already separately service-connected and being compensated for residuals of stroke -voiding (under Diagnostic Code 8008-7542), and residuals of stroke -bowel functional impairment (under Diagnostic Code 7332-8008) at the time of his death.  See June 2019 rating decision.

On review of the record, the Board notes that in addition to the November 2019 private examination report discussed in the JMPR, the record now contains a letter dated in August 2020 (after the February 2020 Board decision), from a private physician (Dr. K.S.H.), who stated that he had been the Veteran's primary care provider since 2002, and then declared that the Veteran had "unfavorable ankylosing spondylitis of the entire spine, including the cervical, thoracic, and lumbosacral spine."  

In this regard, the Board notes that there is no record of this phenomenon in VA treatment records, or in any treatment records authored by Dr. K.S.H., although VA medical providers consistently noted that the Veteran was being treated by a private orthopedic surgeon.  See, e.g., VA Geriatric Clinic records dated in October 2010 and February 2019.  Unfortunately, there is no indication that such records are in the claims file.

In order to ensure VA has a complete picture of the Veteran's disability throughout the relevant timeframe, and to resolve any ambiguity over whether and at what date he developed ankylosis or unfavorable ankylosis, which is relevant to the rating at issue, a request must be made for relevant private medical records.  38 C.F.R. § 3.159(c)(1).

4. Entitlement to higher levels of SMC for all periods on appeal is remanded.

As indicated in the JMPR directives, the Veteran, during his lifetime, and the Appellant, thereafter, has explicitly alleged entitlement to higher levels of SMC for all periods on appeal.  

The Veteran was awarded SMC(k) (for loss/loss of use) for the entire period on appeal and SMC(l) (for requiring aid and attendance) on and after May 7, 2009.

Additional SMC benefits can be awarded depending on disability combinations and the type of aid and attendance required.  See, e.g., 38 U.S.C. § 1114(k)-(t); 38 C.F.R. § 3.350(a)-(j).

In light of the partial grants here and the remanded lumbar spine issues, the Board finds a remand is warranted to ensure proper consideration of any and all SMC levels that may be applicable.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  

The matters are REMANDED for the following action:

1. Regarding the private treating orthopedic surgeon mentioned in VA medical records since 2010 (Dr. K.S.H.), request the Veteran's records from that provider and associate them with the claims file, to the extent they exist.  See, e.g., VA medical records dated in February 2019.  Document all efforts taken to obtain these records.

2. After completion of the above, readjudicate the lumbar spine rating and the intertwined claim of consideration to higher levels of SMC awards throughout the appellate time frame. 

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. Childers, 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.