Citation Nr: 21063905
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 20-09 464
DATE: October 18, 2021

ORDER

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for cervical spine spondylosis with degenerative arthritis is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right shoulder degenerative arthritis is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for lumbar spine intervertebral disc syndrome (IVDS) is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right thumb trigger finger is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (extension) is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (flexion) is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for bilateral dry eye syndrome is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for gastroesophageal reflux disease (GERD) is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left upper extremity carpal tunnel syndrome is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left lower extremity lumbar radiculopathy is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right tibia and/or fibula stress fracture with shin splint is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left shin splint is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for hypertension is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left thigh scar is denied.

Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for dermatitis is denied.

Service connection, to include on a secondary basis, for left heel disorder, to include left heel pain, is denied.

Entitlement to an initial compensable disability rating for hypertension is denied.

Entitlement to an initial disability rating in excess of 20 percent for lumbar spine IVDS is denied.

Entitlement to an initial 20 percent disability rating for left lower extremity lumbar radiculopathy is granted; subject to the rules and regulations governing the payment of monetary benefits.

Entitlement to an initial disability rating in excess of 10 percent for GERD is denied.

Entitlement to an initial compensable disability rating for left thigh scar is denied.

Entitlement to an initial compensable disability rating for dermatitis is denied.

Entitlement to an initial compensable disability rating for right tibia and/or fibula stress fracture with shin splint is denied.

Entitlement to an initial compensable disability rating for left shin splint is denied.

REMANDED

Entitlement to service connection for left knee disorder is remanded.

Entitlement to an initial disability rating in excess of 10 percent for bilateral dry eye syndrome is remanded.

Entitlement to an initial disability rating in excess of 30 percent for cervical spine spondylosis with degenerative arthritis is remanded.

Entitlement to an initial disability rating in excess of 40 percent for cervical radiculopathy with right upper extremity carpal tunnel syndrome is remanded.

Entitlement to an initial disability rating in excess of 20 percent for right shoulder degenerative arthritis is remanded.

Entitlement to an initial disability rating in excess of 10 percent for left hip degenerative labral tear (extension) is remanded.

Entitlement to an initial compensable disability rating for left hip degenerative labral tear (flexion) is remanded.

Entitlement to an initial disability rating in excess of 10 percent for right thumb trigger finger is remanded.

Entitlement to an initial disability rating in excess of 10 percent for left upper extremity carpal tunnel syndrome is remanded.

Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with mixed anxiety and depressed mood is remanded. 

Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. Service connection was granted for cervical radiculopathy with right upper extremity carpal tunnel syndrome; cervical spine spondylosis with degenerative arthritis; adjustment disorder with mixed anxiety and depressed mood; right shoulder degenerative arthritis; lumbar spine IVDS; right thumb trigger finger; left hip degenerative labral tear (extension); left hip degenerative labral tear (flexion); bilateral dry eye syndrome; GERD; left upper extremity carpal tunnel syndrome; left lower extremity lumbar radiculopathy; right tibia and/or fibula stress fracture with shin splint; left shin splint; hypertension; left thigh scar; and dermatitis from April 10, 2018, the day after the Veteran's release from active duty.

2. The evidence of record does not reflect a diagnosis of left heel disability during the period on appeal; and there is no competent evidence showing that any current left heel symptoms have resulted in functional impairments in earning capacity. 

3. Throughout the period on appeal, the Veteran's service-connected hypertension required continuous medication, but is not manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more.   

4. Throughout the period on appeal, the Veteran's service-connected lumbar spine IVDS is manifested by combined range of motion of the thoracolumbar spine to, at worst, 120 degrees, and by muscle spasms and guarding severe enough to result in abnormal gait and abnormal spinal contour, but not by favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period.

5. Throughout the period on appeal, the Veteran's service-connected left lower extremity lumbar radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve.

6. Throughout the period on appeal, the Veteran's service-connected GERD is manifested by pyrosis and substernal pain that is mild in nature and is not productive of considerable impairment of health.

7. Throughout the period on appeal, the Veteran's service-connected left thigh scar has been stable, not painful, and less than 39 square centimeters (sq. cm.) in area. 

8. Throughout the period on appeal, the Veteran's service-connected dermatitis affects less than 5 percent of the entire body and less than 5 percent of the exposed areas affected, with no more than topical therapy required during the past 12 months that does not affect the body as a whole to meet the criteria for systemic treatment. 

9. Throughout the period on appeal, the Veteran's service-connected right tibia and/or fibular stress fracture with shin splint is not manifested by either malunion of the right tibia and fibula or by right shin splint which required treatment for no less than 12 consecutive months and was unresponsive to either shoe orthotics or other conservative treatment.  

1. Throughout the period on appeal, the Veteran's service-connected left shin splint is not manifested by either malunion of the left tibia and fibula or by left shin splint which required treatment for no less than 12 consecutive months and was unresponsive to either shoe orthotics or other conservative treatment.  

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

2. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for cervical spine spondylosis with degenerative arthritis are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

3. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

4. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for right shoulder degenerative arthritis are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

5. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for lumbar spine IVDS are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

6. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for right thumb trigger finger are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

7. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (extension) are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

8. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (flexion) are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

9. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for bilateral dry eye syndrome are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

10. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for GERD are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

11. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left upper extremity carpal tunnel syndrome are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

12. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left lower extremity lumbar radiculopathy are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

13. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for right tibia and/or fibula stress fracture with shin splint are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

14. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left shin splint are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

15. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for hypertension are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

16. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for left thigh scar are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

17. The criteria for an effective date earlier than April 10, 2018, for the grant of service connection for dermatitis are not met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

18. The criteria for service connection, to include on a secondary basis, for left heel disorder, to include left heel pain, are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 

19. The criteria for an initial compensable disability rating for hypertension are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101.

20. The criteria for an initial disability rating in excess of 20 percent for lumbar spine IVDS are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243.

21. The criteria for an initial 20 percent disability rating for left lower extremity lumbar radiculopathy are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

22. The criteria for an initial disability rating in excess of 10 percent for GERD are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346. 

23. The criteria for an initial compensable disability rating for left thigh scar are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.118, Diagnostic Code 7802. 

24. The criteria for an initial compensable disability rating for dermatitis are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. 

25. The criteria for an initial compensable disability rating for right tibia and/or fibular stress fracture with shin splint are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.71a, Diagnostic Code 5299-5262. 

2. The criteria for an initial compensable disability rating for left shin splint are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.71a, Diagnostic Code 5299-5262. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 2009 to April 2018.  These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In an October 2019 rating decision, the RO assigned a 30 percent initial disability rating for adjustment disorder with mixed anxiety and depressed mood effective April 10, 2018.  As the initial rating period regarding the Veteran's psychiatric issue is not the maximum allowable, the issue remains on appeal.  AB. v. Brown, 6 Vet. App. 35 (1993).

Earlier Effective Dates

The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).

1. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome.

2. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for cervical spine spondylosis with degenerative arthritis.

3. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood.

4. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right shoulder degenerative arthritis.

5. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for lumbar spine IVDS.

6. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right thumb trigger finger.

7. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (extension).

8. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left hip degenerative labral tear (flexion).

9. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for bilateral dry eye syndrome.

10. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for GERD.

11. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left upper extremity carpal tunnel syndrome.

12. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left lower extremity lumbar radiculopathy.

13. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for right tibia and/or fibula stress fracture with shin splint.

14. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left shin splint.

15. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for hypertension.

16. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for left thigh scar.

17. Entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for dermatitis.

The Veteran contends that she should be assigned an effective date earlier than April 10, 2018 for the grant of service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome; cervical spine spondylosis with degenerative arthritis; adjustment disorder with mixed anxiety and depressed mood; right shoulder degenerative arthritis; lumbar spine IVDS; right thumb trigger finger; left hip degenerative labral tear (extension); left hip degenerative labral tear (flexion); bilateral dry eye syndrome; GERD; left upper extremity carpal tunnel syndrome; left lower extremity lumbar radiculopathy; right tibia and/or fibula stress fracture with shin splint; left shin splint; hypertension; left thigh scar; and dermatitis.

Upon review of the relevant evidence, the Board finds that entitlement to an effective date earlier than April 10, 2018 for the grant of service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome; cervical spine spondylosis with degenerative arthritis; adjustment disorder with mixed anxiety and depressed mood; right shoulder degenerative arthritis; lumbar spine IVDS; right thumb trigger finger; left hip degenerative labral tear (extension); left hip degenerative labral tear (flexion); bilateral dry eye syndrome; GERD; left upper extremity carpal tunnel syndrome; left lower extremity lumbar radiculopathy; right tibia and/or fibula stress fracture with shin splint; left shin splint; hypertension; left thigh scar; and dermatitis is not warranted.  Here, the Veteran was released from active duty on April 9, 2018.  Her original claim for service connection as to the above-mentioned issues was received in September 2017, while she was on active duty.  In an April 2018 rating decision, the RO granted service connection for cervical radiculopathy with right upper extremity carpal tunnel syndrome; cervical spine spondylosis with degenerative arthritis; adjustment disorder with mixed anxiety and depressed mood; right shoulder degenerative arthritis; lumbar spine IVDS; right thumb trigger finger; left hip degenerative labral tear (extension); left hip degenerative labral tear (flexion); bilateral dry eye syndrome; GERD; left upper extremity carpal tunnel syndrome; left lower extremity lumbar radiculopathy; right tibia and/or fibula stress fracture with shin splint; left shin splint; hypertension; left thigh scar; and dermatitis effective from April 10, 2018, the first day following the Veteran's separation from service.  As such, the effective date was correctly established as the first day after release from active duty, and no effective date earlier than April 10, 2018 is available under the law.  38 C.F.R. § 3.400(b)(2).  Accordingly, the claims of entitlement to an effective date earlier than April 10, 2018, for the grant of service connection for cervical radiculopathy with right upper extremity car; cervical spine spondylosis with degenerative arthritis; adjustment disorder with mixed anxiety and depressed mood; right shoulder degenerative arthritis; lumbar spine IVDS; right thumb trigger finger; left hip degenerative labral tear (extension); left hip degenerative labral tear (flexion); bilateral dry eye syndrome; GERD; left upper extremity carpal tunnel syndrome; left lower extremity lumbar radiculopathy; right tibia and/or fibula stress fracture with shin splint; left shin splint; hypertension; left thigh scar; and dermatitis are denied.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Additionally, secondary service connection may be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or aggravated beyond its natural progression, by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  A permanent worsening is not required, as secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence."  Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 

Entitlement to service connection, to include on a secondary basis, for left heel disorder, to include left heel pain 

The Veteran seeks service connection for left heel disorder.  Specifically, she contends that her claimed left heel disorder results from her service-connected left hip disability. 

Upon review of the relevant evidence, the Board finds that service connection for left heel disorder is not warranted.  Here, the Veteran's service treatment records are silent for complaints of, treatment for, or a diagnosis of a left heel disability.  The October 2017 VA examiner found that, despite the Veteran's subjective reports of left heel pain, which she stated was due to her left hip disorder, a left heel disability could not be diagnosed, as the Veteran's left ankle and left knee were normal upon examination.  Moreover, post-service VA treatment records are silent for a diagnosis of and treatment for left heel disorder.  On the contrary these records show that the Veteran denied heel pain in 2019.  Further, there is no competent evidence showing that the Veteran's current reports of left heel symptoms have resulted in functional impairments in her earning capacity.  Therefore, she has no current disability for which service connection may be granted.

The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding a veteran's symptoms such as pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110 ).  In Saunders, the Federal Circuit stressed that "[t]he policy underlying veterans compensation [is] to compensate veterans whose ability to earn a living is impaired as a result of their military service."; Cf. Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) ("disability" in VA regulations is "generally associated with the veteran's inability to perform certain acts").  In this case, these principles do not support a finding that the Veteran has a current left heel disability.  Notably, she has not specified how she believes her subjectively reported left heel symptoms have resulted in specific functional impairments in her earning capacity.  Additionally, there is no competent medical or vocational evidence suggesting that her current subjective left heel symptoms have functionally impaired her earning capacity in any way. 

In the absence of proof of a current disability, there can be no valid claim for service connection.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim."  McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Here the Veteran has not shown by medical evidence the presence of a current disability.  Nor does the evidence establish any physical functional impairment that would suggest a disability even in the absence of a diagnosis.  See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018).  As the claims file does not show any treatment for or a diagnosis of a left heel disability during the period on appeal, the Veteran's claim of entitlement to service connection for left heel disorder is denied. 

Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim of service connection for left heel disorder.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Higher Initial Ratings

1.	Entitlement to an initial compensable disability rating for hypertension

The Veteran seeks a higher disability rating for her service-connected hypertension, which is currently rated as noncompensable under Diagnostic Code 7101 (Hypertensive vascular disease).  38 C.F.R. § 4.104, Schedular of ratings  cardiovascular system.  Under this diagnostic code, a 10 percent rating is assigned for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more, or; minimum evaluation for a history of diastolic blood pressure predominately 100 or more requiring continuous medication.  Id.  A 20 percent rating is assigned for diastolic readings of predominantly 110 or more, or systolic readings of 200 or more.  Id.  A 40 percent rating is assigned for diastolic readings of predominantly 120 or more.  Id.  A 60 percent rating, the maximum schedular rating available, is assigned for diastolic readings of predominantly of 130 or more.  Id. 

Under the provisions of 38 C.F.R. § 4.31, in every instance where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 

Upon review of the relevant evidence, the Board finds that an initial compensable disability rating for the Veteran's service-connected hypertension is not warranted.  While the medical evidence of record for the period on appeal reflects that the Veteran is treated with medication to manage her hypertension, a 10 percent rating also requires a history of diastolic pressure predominantly 100 or more.  Here, out of the numerous blood pressure readings recorded throughout the Veteran's post-service VA and private treatment records and the October 2017 VA examination, none reflect diastolic pressure predominantly 100 or more, nor do they demonstrate systolic pressure predominantly 160 or more.  Specifically, diastolic readings predominantly range between 64 to 98, and systolic readings predominantly range between 96 to 151.  While the Board acknowledges one diastolic reading in the October 2017 VA examination report over 100, specifically, 108, this was an isolated instance, as the Veteran's diastolic readings recorded prior to and after this instance remained predominantly below 100 throughout the period on appeal.  

The Board acknowledges that it may not deny entitlement to a higher rating 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, 62-63 (2012).  However, where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable.  See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically mentioned in Diagnostic Code 7101). 

In sum, there is no evidence to support a finding of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more to warrant a compensable disability rating for the Veteran's hypertension under Diagnostic Code 7101.  Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable disability rating for hypertension, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

2.	Entitlement to an initial disability rating in excess of 20 percent for lumber spine IVDS

The Veteran seek a higher disability rating for her service-connected lumbar spine IVDS, which is currently rated as 20 percent disabling under Diagnostic Code 5243.  38 C.F.R. § 4.71a, Schedule of ratings  musculoskeletal system.  While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria for Diagnostic Code 5243 was not changed.   

Diagnostic Code 5243 instructs to evaluate IVDS either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula Rating for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation.  38 C.F.R. § 4.71a.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  Id.    

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  38 C.F.R. § 4.71a.  A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Id.  A 60 percent disability rating, the maximum schedular rating available, is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Id.  An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1.

Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Plate V.    

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note 1.     

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis.   Id.    

In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability.  See 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.   Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Id.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 

Upon review of the relevant evidence, the Board finds that an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine IVDS is not warranted.  Specifically, the medical evidence of record, to include the October 2017 VA examination and post-service VA and private treatment records, does not support a finding of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  During the October 2017 VA examination, initial range of motion, with pain noted, was to 70 degrees in forward flexion, to 15 degrees in extension, and with a combined range of motion to 145 degrees.  Repeated range of motion testing, with pain noted, revealed forward flexion to 65 degrees, extension to 15 degrees, and combined range of motion to 130 degrees.  The Veteran reported lumbar spine flare-ups that contribute to functional loss due to pain and weakness.  Range of motion loss during a flare-up, to include pain noted, was estimated to be to 65 degrees in forward flexion, to 10 degrees in extension, and with a combined range of motion to 120 degrees.  The examiner found evidence of guarding and muscle spasms that result in abnormal gait and abnormal spinal contour.  No ankylosis was found. While the Veteran was diagnosed with IVDS, the examiner noted there were no episodes due to IVDS that required prescribed bed rest and treatment by a physician during the last 12 months.  Post-service VA and private treatment records for the period on appeal are silent for lumbar spine range of motion testing, as well as evidence demonstrating prescribed bed rest and treatment by a physician for IVDS during a twelve-month period.  As the Veteran is already in receipt of a 20 percent disability rating under Diagnostic Code 5243 for combined range of motion of the thoracolumbar spine to no greater than 120 degrees, as well as for muscle spasms and guarding severe enough to result in abnormal gait and abnormal spinal contour, for the next-higher 40 percent disability rating to be warranted, the evidence must show either forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Here, the medical evidence of record reflects forward flexion of the lumbar spine to, at worst, 65 degrees, and it fails to show favorable ankylosis of the entire thoracolumbar spine.  Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity lumbar radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her lumbar spine disability.  Therefore, the currently assigned 20 percent initial disability rating for the Veteran's lumbar spine IVDS is appropriate, and a higher rating is not warranted.   

The Board had considered whether a higher disability rating is warranted for the Veteran's IVDS based on incapacitating episodes.  For the next-higher 40 percent to be warranted under Diagnostic Code 5243, the evidence must show IVDS with incapacitating episodes (a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician) having a total during of at least 4 weeks but less than 6 weeks during the past twelve months.  Here, the October 2017 VA examination, as well as post-service VA and private treatment records are silent for evidence of prescribed bedrest and treatment by a physician for IVDS for a duration of at least 4 weeks.  As such a higher disability rating under Diagnostic Code 5243 is not warranted. 

Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 20 percent for lumbar spine IVDS, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

3.	Entitlement to an initial disability rating in excess of 10 percent for left lower extremity lumbar radiculopathy

The Veteran seeks a higher disability rating for her service-connected left lower extremity lumbar radiculopathy, which is currently rated as 10 percent disabling under Diagnostic code 8520, Paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Schedule of ratings  neurological conditions and convulsive disorders.  

Under Diagnostic Code 8520, a 10 percent rating is assigned for evidence of mild incomplete paralysis of the sciatic nerve.  Id.  A 20 percent rating is assigned for evidence of moderate incomplete paralysis of the sciatic nerve.  Id.  A 40 percent rating is assigned for evidence of moderately severe incomplete paralysis of the sciatic nerve.  Id.  A 60 percent rating is assigned for evidence of severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy.  Id.  An 80 percent rating, the maximum schedular rating available, is assigned for evidence of complete paralysis of the sciatic nerve, to include symptoms of where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  Id. 

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.  Rather than applying a mechanical formula to determine when symptomatology is "mild" or "moderate" etc., the Board must evaluate all of the evidence to ensure an "equitable and just" decision.  38 C.F.R. § 4.6. 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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 is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Turning to the evidence of record, the Veteran underwent a VA examination in October 2017 as to her lower extremity peripheral nerves.  The Veteran's left lower extremity symptoms were found to be moderate as to constant pain, severe as to intermittent pain and paresthesias, and mild as to numbness.  Sensation testing for light touch showed decreased sensation in the left lower extremity.  Muscle atrophy was not found, nor were trophic changes noted.  The examiner diagnosed the Veteran with moderate incomplete paralysis of the left lower extremity involving the sciatic nerve. 

Post-service VA treatment records for the period on appeal reflect the Veteran's reported pain associated with her left lower extremity lumbar radiculopathy. 

Upon review of the relevant evidence, the Board finds that an initial 20 percent disability rating is warranted for the Veteran's service-connected left lower extremity lumbar radiculopathy.  Here, the medical evidence of record, to include post-service treatment records and the October 2017 VA examination, reflects that the Veteran's left lower extremity lumbar radiculopathy is primarily manifested by mild numbness, moderate constant pain, severe intermittent pain and paresthesias, decreased sensation in the left lower extremity, and moderate incomplete paralysis of the left lower extremity affecting the sciatic nerve.  Further, the most probative evidence of record is against a finding that the Veteran's left lower extremity lumbar radiculopathy is manifested by moderately severe incomplete paralysis of the sciatic nerve, as the October 2017 VA examination reflects that muscle strength testing and deep tendon reflexes as to the left knee and ankle was normal, and no tropic changes were present.  Therefore, the Board finds that the level of impairment associated with the Veteran's left lower extremity lumbar radiculopathy is most analogous to moderate incomplete paralysis of the left sciatic nerve, which warrants a 20 percent initial disability rating for left lower extremity lumbar radiculopathy. 

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, separate or higher ratings under a different Diagnostic Code are not warranted. 

In conclusion, for the entire period on appeal, the Board finds that an initial disability rating of 20 percent, but no higher, for the Veteran's left lower extremity  lumbar radiculopathy is warranted.  Accordingly, the claim is granted.

4.	Entitlement to an initial disability rating in excess of 10 percent for GERD

The Veteran seeks a higher disability rating for her service-connected GERD, which is currently rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346.  See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen).  Pursuant to 38 C.F.R. § 4.27, unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and '99'.  See 38 C.F.R. § 4.20 (2019) (when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous).  Here, the RO determined that the most closely analogous Diagnostic Code is 7346 (Hernia hiatal).   

Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more symptoms, to include dysphagia, pyrosis, and regurgitation, of less severity.  38 C.F.R. § 4.114.  A 30 percent rating is assigned 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, the maximum schedular rating available, is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health.  Id.  

Upon review of the relevant evidence, the Board finds that an initial disability rating in excess of 10 percent for the Veteran's service-connected GERD is not warranted.  For the next-higher 30 percent rating to be warranted, the evidence must show that the Veteran's GERD is manifested by persistently recurrent epigastric distress with symptoms of dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Here, the medical evidence of record, to include the October 2017 VA examination and post-service VA  and private treatment records, reflects that the Veteran's GERD is primarily manifested by symptoms of dysphagia and substernal pain that are mild in nature and not productive of considerable impairment of health.  The October 2017 VA examination shows GERD symptoms of pyrosis and substernal pain.  However any episodes of epigastric distress are noted to be infrequent, and the examiner found there to be no impact on the Veteran's ability to work due to her GERD.  Further, post-service VA and private treatment records reflect that the Veteran's primary GERD symptom is occasional pyrosis, and that her GERD is controlled with medication.  Here, a higher 30 percent initial disability rating is not warranted for GERD, as the evidence does not demonstrate that the Veteran's epigastric distress is persistently recurrent or that her GERD symptoms, to include pyrosis, are productive of considerable impairment of health.  Therefore, the Board finds that the currently assigned 10 percent initial disability rating for GERD is appropriate and a higher rating is not warranted.

Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 10 percent for GERD, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

5.	Entitlement to an initial compensable disability rating for left thigh scar

The Veteran seeks a higher disability rating for her service-connected left thigh scar.

The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805.  The Veteran's left thigh scar is currently rated as noncompensable (zero percent) under Diagnostic Code 7802, which applies to scars not of the head, face, or neck, that are not associated with underlying soft tissue damage.  Id.  A maximum 10 percent rating is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater.  Id. 

Diagnostic Code 7800 is not for application, as the Veteran's left thigh scar is not of the head, face, or neck.  38 C.F.R. § 4.118. 

Diagnostic Code 7801 applies to scars not of the head, face, or neck, that are associated with underlying soft tissue damage.  38 C.F.R. § 4.118.  A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  Id.  A 20 percent rating is assigned for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.).  Id.  A 30 percent rating is assigned for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.).  Id.  A 40 percent rating, the maximum schedular rating available, is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater.  Id. 

Diagnostic Code 7804 applies to unstable or painful scars.  38 C.F.R. § 4.118.  A 10 percent rating is assigned for one or two scars that are unstable or painful.  Id.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  Id.  A 30 percent maximum rating is assigned for five or more scars that are unstable or painful.  Id. 

Upon review of the relevant evidence, the Board finds that an initial compensable disability rating for the Veteran's service-connected left thigh scar is not warranted.  The October 2017 VA examination showed a left thigh scar that was not painful or unstable and did not measure 39 sq. cm. or more.  A superficial non-lineal scar was seen on the Veteran's left thigh measuring 4 cm by 1 cm (4 sq. cm.).  Post-service VA and private treatment records are also silent for evidence of a left thigh scar that is either painful, unstable, or that measures 39 sq. cm. or more.

The Board has considered whether a higher rating or an additional rating is warranted under an alternative diagnostic code but finds that the Veteran's left thigh scar is not manifested by pain or underlying soft tissue damage, is not unstable, and does not affect an area of at least 39 sq. cm.  As such, the currently assigned initial noncompensable disability rating for left thigh scar under Diagnostic Code 7802 is appropriate.

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

6.	Entitlement to an initial compensable disability rating for dermatitis

The Veteran seeks a higher disability rating for her service-connected dermatitis, which is currently rated as noncompensable (zero percent) under Diagnostic Code 7806 (Dermatitis or eczema).  38 C.F.R. § 4.118, Schedule of ratings  skin. 

VA amended the criteria for rating skin disabilities effective from August 13, 2018.  These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018.  Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.  The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable (zero percent) rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months.  38 C.F.R. § 4.118.  A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  Id.  A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period.  Id.  A 60 percent rating, the maximum schedular rating available, is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period.  Id.  Under the former rating criteria for Diagnostic Code 7806, the skin disability may also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  Id.  

For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug."  Burton v. Wilkie, 30 Vet. App. 286 (2018).  Only the second question need be addressed if the treatment is clearly systemic.  Id.  

Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin.  38 C.F.R. § 4.118(a).

Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Code 7806.  See 38 C.F.R. § 4.118.  Under this formula, a noncompensable (zero percent) rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected.  Id.  A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.  Id.  A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.  Id.  A 60 percent rating, the maximum schedular rating available, is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.  Id.  Under the revised General Rating Formula for the Skin for Diagnostic Code 7806, the skin disability may also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  Id.  

Upon review of the relevant evidence, the Board finds that an initial compensable disability rating for the Veteran's service-connected dermatitis is not warranted.  The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's dermatitis does not more nearly approximate at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  During the October 2017 VA examination, the examiner found that the Veteran's dermatitis affected less than 5 percent of the total body area and less than 5 percent of the exposed area.  Further, the examiner indicated that the Veteran treated her dermatitis with over-the-counter topical medications.  Post-service treatment records prior to August 13, 2018 are silent for treatment for dermatitis.  Under the prior rating criteria, the Board does not find that the Veteran's over-the-counter topical medications used to treat her dermatitis are systematic therapy, as the topical treatment does not affect the body as a whole when treating the Veteran's skin disorder.  On the contrary, the treatment only affects the small areas on the Veteran's body where dry skin symptoms are present.  Therefore, an initial compensable disability rating for the Veteran's dermatitis under the former rating criteria for Diagnostic Code 7806 is not warranted.

The Board also finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018 regulations because the Veteran's dermatitis does not more nearly approximate characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12-month period.  Here, post-service VA and private treatment records are silent for these criteria, as the medical evidence does not demonstrate dermatitis skin lesions involving at least 5 percent of the entire body or at least 5 percent of the exposed area affected, nor does it reflect systemic therapy for dermatitis, specifically, treatment that is administered through any route other than the skin.  Therefore, an initial compensable disability rating for the Veteran's dermatitis under the revised rating criteria for Diagnostic Code 7806 is not warranted.

The Board acknowledges that the Veteran believes that her dermatitis has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms, to include dry skin, and her reports are credible.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, she does not assert, and medical treatment records do not show, that her skin disability more nearly approximates the criteria in the next higher rating.

The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation.  However, the evidence does not reflect that the Veteran's skin disability would warrant a higher rating under a different diagnostic code, as her dermatitis is not manifested by disfigurement or scarring to warrant a higher rating under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805).  See 38 C.F.R. § 4.118.

In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial compensable disability rating for dermatitis, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

7.	Entitlement to an initial compensable disability rating for right tibia and/or fibular stress fracture with shin splint

8.	Entitlement to an initial compensable disability rating for left shin splint

The Veteran seeks higher disability ratings for her service-connected right tibia and/or fibular stress fracture with shin splint and her service-connected left shin splint.  These disabilities are each currently rated as noncompensable (zero percent) under Diagnostic Code 5299-5262.  Here, the RO determined that the most closely analogous Diagnostic Code is 5262 (Impairment of tibia and fibula).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities."  Id.  

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110.  Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.

Under the former criteria for Diagnostic Code 5262, a 10 percent rating is assigned for malunion of tibia and fibula with slight knee or ankle disability.  38 C.F.R. § 4.71a.  A 20 percent rating is assigned for malunion of the tibia and fibula with moderate knee or ankle disability.  Id.  A 30 percent rating is assigned for malunion of the tibia and fibula with marked knee or ankle disability.  A 40 percent rating, the maximum schedular rating available, is assigned for nonunion of the tibia and fibula with loose motion requiring a brace.  Id.

According to Merriam Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount.  "Moderate" means limited in scope or effect.  "Marked" means having a distinctive or emphasized character.

Under the amended criteria for Diagnostic Code 5262, a noncompensable (zero percent) rating is assigned for evidence of shin splints with treatment less than 12 consecutive months, one of both lower extremities.  38 C.F.R. § 4.71a, Schedule of ratings  musculoskeletal system.  A 10 percent rating is assigned for evidence of shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities.  Id.  A 20 percent rating is assigned for evidence of shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity.  Id.  A 30 percent rating is assigned for evidence of shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities.  Id.  A 40 percent rating, the maximum schedular rating available, is assigned for evidence of nonunion or the tibia and fibular, with loose motion, and requiring a brace.  Id.

Under the pre-February 7, 2021 rating criteria for Diagnostic Code 5262, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran's service-connected right tibia and/or fibular stress fracture with shin splint and an initial compensable disability rating for her service-connected left shin splint.  For the next-higher rating under the former rating criteria to be warranted, the evidence must demonstrate at least malunion of the right and left tibia and fibula.  The Board acknowledges the Veteran's lay reports of bilateral shin pain during the October 2017 VA examination.  However, even considering the Veteran's lay reports of symptoms regarding her bilateral shin splints, the medical evidence of record, to include the October 2017 VA examination, as well as post-service treatment records prior to February 7, 2021, is silent for evidence of any malunion of the right tibia and fibula and the left tibia and fibula, nor does this medical evidence demonstrate symptoms of right and/or left shin splints which more nearly approximate any malunion of the right and/or left tibia and fibula to warrant initial compensable disability ratings under the former rating criteria for Diagnostic Code 5262.

Under the amended rating criteria for Diagnostic Code 5262, the Board also finds that the preponderance of the evidence is against an initial compensable disability rating for the Veteran's service-connected right tibia and/or fibula stress fracture with right shin splint and an initial compensable disability rating for left shin splint.  Here, the medical evidence of record from February 7, 2021 to the present does not demonstrate right and/or left shin splints which require treatment for no less than 12 consecutive months and are unresponsive to either shoe orthotics or other conservative treatment.  As such, initial compensable disability ratings for right tibia and/or fibula stress fracture with shin splint and left shin splint under the amended criteria for Diagnostic Code 5262 are not warranted.

In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claims for an initial compensable disability rating for right tibia and/or fibula stress fracture with shin splint and an initial compensable disability rating for left shin splint, the claims must be denied.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.  

REASONS FOR REMAND

1.	Entitlement to service connection for left knee disorder is remanded.

The Veteran's claim for service connection for left knee disorder was denied by the RO based on a finding that there was no evidence of a persistent left knee disability during service and that, at the time of the Veteran's October 2017 VA examination, the examiner found no evidence of a current left knee disability.  However, post-service VA treatment records from 2019 reflect a current diagnosis of left knee strain and treatment for left knee pain.  The matter is remanded to afford the Veteran a VA examination to determine the nature and etiology of her diagnosed left knee strain.

2.	Entitlement to an initial disability rating in excess of 10 percent for bilateral dry eye syndrome is remanded.

The Veteran's bilateral dry eye syndrome is currently rated as 10 percent disabling under Diagnostic Code 6099-6018, which indicates that the Veteran's bilateral dry eye syndrome is rated analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for chronic conjunctivitis (Diagnostic Code 6018).  Dry eye syndrome is not a disorder specifically listed in the rating schedule and, therefore, it should be rated by analogy to a closely related disease or injury.  38 C.F.R. §§ 4.20, 4.27.  Chronic conjunctivitis (Diagnostic Code 6018) and disorders of the lacrimal apparatus (Diagnostic Code 6025) have symptoms such as watering of the eyes, redness, and eye discharge, which most closely relate to the Veteran's dry eye syndrome symptoms.  While the Veteran underwent a VA eye examination in December 2017, the examiner did not specify whether the Veteran's bilateral dry eye syndrome is a disorder of the lacrimal apparatus, which could potentially allow for a higher rating under Diagnostic Code 6025.  As such, a remand is necessary to obtain a VA addendum medical opinion.

3.	Entitlement to an initial disability rating in excess of 30 percent for cervical spine spondylosis with degenerative arthritis is remanded.

4.	Entitlement to an initial disability rating in excess of 40 percent for cervical radiculopathy with right upper extremity carpal tunnel syndrome is remanded.

5.	Entitlement to an initial disability rating in excess of 20 percent for right shoulder degenerative arthritis is remanded.

6.	Entitlement to an initial disability rating in excess of 10 percent for left hip degenerative labral tear (extension) is remanded.

7.	Entitlement to an initial compensable disability rating for left hip degenerative labral tear (flexion) is remanded.

8.	Entitlement to an initial disability rating in excess of 10 percent for right thumb trigger finger is remanded.

9.	Entitlement to an initial disability rating in excess of 10 percent for left upper extremity carpal tunnel syndrome is remanded.

10.	 Entitlement to and initial disability rating in excess of 30 percent for adjustment disorder with mixed anxiety and depressed  mood is remanded. 

Post-service VA treatment records from 2020 demonstrate that the Veteran's service-connected cervical spine disability, cervical radiculopathy of the right upper extremity; right shoulder disability; left hip disability; right thumb disability; left upper extremity carpal tunnel syndrome; and psychiatric disability have worsened since her last VA examinations for these disabilities in October 2017. Specifically, these records reflect increased pain in the left hip; increased pain and numbness in the cervical spine; increased numbness, tingling, weakness, and swelling in the right and left hands and fingers; increased pain in the right shoulder; and worsening symptoms of depression, to include harmful thoughts, due to chronic pain.  Therefore, new VA examinations are needed to properly evaluate the current severity of the Veteran's service-connected cervical spine disability, cervical radiculopathy of the right upper extremity; right shoulder disability; left hip disability; right thumb disability; left upper extremity carpal tunnel syndrome; and psychiatric disability.  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

11.	Entitlement to a TDIU is remanded.

The Board notes that the Veteran's claim for a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue).

The matters are REMANDED for the following action:

1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file.  Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file.

2. Thereafter, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any diagnosed left knee disorder, to include left knee strain.  The Veteran's electronic claims file must be accessible for review by the VA examination in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  A detailed rationale for all opinions should be provided. 

Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: 

Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee disorder had its onset in service or is otherwise directly related to service?

In rendering the requested opinions, the examiner should consider the Veteran's post-service VA treatment records which reflect a diagnosis of left knee strain and treatment for reported left knee pain.

By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file.   

3.	Send the Veteran's claims file to an appropriate medical professional to obtain an addendum opinion regarding whether the Veteran's bilateral dry eye syndrome is a disorder of the lacrimal apparatus.  The Veteran's electronic claims file must be made accessible to the designated professional for review.  A detailed rationale for any opinion expressed should be provided. 

If the requested opinion cannot be provided without a new examination, one should be scheduled. 

4.	Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of her service-connected cervical spine disability.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing.  If possible, provide these tests for the opposite joint.  If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case.  A detailed rationale for all opinions expressed should be provided. 

Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following:

a.	Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination.

b.	Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including frequency, duration, severity, and functional impairment.

c.	If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations.  If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner.

5.	Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of her service-connected cervical spine radiculopathy with right upper extremity carpal tunnel syndrome and her service-connected left upper extremity carpal tunnel syndrome.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  A detailed rationale for all opinions expressed should be provided.

6.	Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of her service-connected right shoulder disability.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing.  If possible, provide these tests for the opposite joint.  If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case.  A detailed rationale for all opinions expressed should be provided.

Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following:

a.	Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination.

b.	Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including frequency, duration, severity, and functional impairment.

c.	If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations.  If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner.

7.	Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of her service-connected left hip disability.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing.  If possible, provide these tests for the opposite joint.  If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case.  A detailed rationale for all opinions expressed should be provided. 

Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following:

a.	Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination.

b.	Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including frequency, duration, severity, and functional impairment.

c.	If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations.  If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner.

8.	Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of her service-connected right thumb disability.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  A detailed rationale for all opinions expressed should be provided.

9.	Schedule the Veteran for a VA examination with a psychiatrist or a psychologist to determine the nature and current severity of her service-connected adjustment disorder with mixed anxiety and depressed mood.  The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination.  A complete history from the Veteran should be obtained and recorded.  Based on review of the appropriate records and any necessary testing, the examiner should identify the symptoms and occupational and social impairment the Veteran has manifested since the October 2017 VA psychiatric examination that are attributable to the Veteran's service-connected psychiatric disability.  A detailed rationale for all opinions expressed should be provided.

10.	After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims, to include the intertwined issue of entitlement to a TDIU.  If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted.

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Houle, 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.