Citation Nr: 21064576
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 16-44 124
DATE: October 20, 2021

ORDER

Entitlement to an initial rating higher than 20 percent for left shoulder strain is denied.

Entitlement to a temporary total rating (TTR) pursuant to 38 C.F.R. § 4.30, based on the need for convalescence following left shoulder surgery in January 2015, is denied.

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

Entitlement to an initial rating higher than 10 percent for right elbow bursitis status post ulnar nerve transposition, notwithstanding the periods from April 24, 2015 to June 24, 2015 and from March 30, 2017 to May 17, 2017, for which a temporary total rating based on the need for convalescence is in effect, is denied.  

Entitlement to a temporary total rating (TTR) pursuant to 38 C.F.R. § 4.30, based on the need for convalescence from April 24, 2015 to June 24, 2015 for right elbow surgery is granted.

Entitlement to a temporary total rating (TTR) pursuant to 38 C.F.R. § 4.30, based on the need for convalescence from March 30, 2017 to May 17, 2017 for right elbow surgery is granted.

Entitlement to an initial compensable rating for residual scars of the right upper extremity is denied. 

Entitlement to an initial rating higher than 10 percent for right extensor carpi ulnaris (ECU) subluxation and surgical repair is denied.

Entitlement to an initial compensable rating prior to September 15, 2020 and a rating higher than 10 percent thereafter for left extensor carpi ulnaris (ECU) subluxation is denied.

Entitlement to an initial rating higher than 10 percent for cervical strain is denied.

Entitlement to an initial rating of 40 percent, but no higher, for right upper extremity radiculopathy is granted.

Entitlement to a separate initial 20 percent rating for left upper extremity radiculopathy is granted. 

Entitlement to an initial rating higher than 10 percent for the period prior to September 15, 2020, notwithstanding the period from February 20, 2019 to March 31, 2019 for which a temporary total rating is in effect, and a rating higher than 20 percent from September 15, 2020 for thoracolumbar strain and scoliosis is denied.  

Entitlement to an initial rating higher than 20 percent for left lower extremity radiculopathy is denied. 

Entitlement to an initial rating higher than 20 percent for right lower extremity radiculopathy is denied.

Entitlement to an initial compensable rating for lipoma on the abdomen is denied.

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a right shoulder disability, to include on a secondary basis, is remanded.

Entitlement to service connection for a left elbow disability is remanded.

Entitlement to service connection for a right hand disability, to include on a secondary basis, is remanded.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's left shoulder disability was manifested by pain and range of motion greater than 25 degrees from his side.

2. The Veteran had a left shoulder procedure in January 2015; however, it did not result in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more.

3. Throughout the period on appeal, the Veteran's left shoulder scar was neither painful or unstable and the approximate total area was no more than 5.5 square centimeters.

4. Notwithstanding the periods from April 24, 2015 to June 24, 2015 and from March 30, 2017 to May 17, 2017, the Veteran's right elbow bursitis is productive of pain, locking, flexion no worse than 90 degrees, extension no worse than 5 degrees, and normal pronation and supination.

5. The Veteran underwent right elbow surgery, specifically for cubital tunnel release, right ulnar tunnel release, and right ulnar nerve neurolysis with revision anterior subcutaneous transposition surgery, on April 24, 2015, which resulted in treatment for his surgical incision and necessitated the use of a sling until June 24, 2015. 

6. The Veteran underwent another right elbow surgery, specifically for right partial medial epicondylectomy and right ulnar nerve neurolysis with reinforcement of the anterior transposition, on March 30, 2017, which resulted in treatment for his surgical incision and necessitated the use of a brace and a sling until May 17, 2017. 

7. The Veteran's right upper extremity scars were neither painful, unstable, covered a total area of at least 39 square centimeters, or resulted in functional impairment.

8. At no time during the period on appeal did the Veteran's right ECU more closely approximate ankylosis of the right wrist, and the Veteran has not had surgical treatment with subsequent recovery for his service-connected right ECU.

9. For the period prior to September 15, 2020, the Veteran's left ECU was not manifested by palmar flexion limited in line with the forearm, or dorsiflexion less than 15 degrees.

10. At no time during the period from September 15, 2020 did the Veteran's left ECU more closely approximate ankylosis of the left wrist. 

11. The Veteran's cervical spine disorder was manifested by forward flexion no worse than 40 degrees and a combined range of motion of greater than 170 degrees, without incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least two weeks but less than four weeks during the past 12 months.

12. Resolving reasonable doubt in favor of the Veteran, his right upper extremity radiculopathy more closely approximates moderately severe incomplete paralysis or impairment for the entire period on appeal.

13. Resolving reasonable doubt in favor of the Veteran, the Veteran has left upper extremity radiculopathy manifested by mild incomplete paralysis.

14. For the period prior to September 15, 2020, notwithstanding the period from February 20, 2019 to March 31, 2019, the preponderance of the evidence does not establish that the Veteran's lumbar spine disorder was manifested by range of motion limited to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

15. For the period from September 15, 2020, the Veteran's lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; and there is no objective evidence of incapacitating episodes lasting a duration of at least 4 weeks during a 12 month period or neurologic abnormalities, other than radiculopathy, due to the lumbar spine.

16. The Veteran's left lower extremity radiculopathy was manifested by no more than moderate, incomplete paralysis.

17. The Veteran's right lower extremity radiculopathy was manifested by no more than moderate, incomplete paralysis.

18. The Veteran's lipoma was not manifested by functional impairment; 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.

19. The Veteran does not have a bilateral ear hearing loss disability for VA purposes. 

CONCLUSIONS OF LAW

1. The criteria for an initial rating higher than 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5019-5201.

2. The criteria for a TTR based on the need for convalescence due to surgical treatment in January 2015 for a service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30.

3. The criteria for an initial compensable rating for a left shoulder scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7802.

4. The criteria for an initial rating higher than 10 percent for right elbow bursitis status post ulnar nerve transposition, notwithstanding the periods from April 24, 2015 to June 24, 2015 and from March 30, 2017 to May 17, 2017, for which a temporary total rating is in effect, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5206-5019.

5. The criteria for a temporary total disability rating based on convalescence from April 24, 2015 to June 24, 2015 for a right elbow surgery have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30.

6. The criteria for a temporary total disability rating based on convalescence from March 30, 2017 to May 17, 2017 for a right elbow surgery have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30.

7. The criteria for an initial compensable rating for residual scars of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7805.

8. The criteria for entitlement to an initial rating in excess of 10 percent for right ECU subluxation and surgical repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5299-5215.

9. The criteria for entitlement to an initial compensable rating prior to September 15, 2020 and a rating higher than 10 percent thereafter for left ECU subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5215.

10. The criteria for an initial rating in excess of 10 percent for cervical strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237.

11. Throughout the period on appeal, the criteria for a rating of 40 percent, but no higher, for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8510.

12. The criteria for entitlement to a separate 20 percent rating, but no higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8510.

13. For the period prior to September 15, 2020, notwithstanding the period from February 20, 2019 to March 31, 2019, the criteria for a rating in excess of 10 percent for the lumbar spine disability have not been met. 38 U.S.C.§1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237.

14. For the period from September 15, 2020, the criteria for a disability rating in excess of 20 percent for the thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237.

15. The criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8520.

16. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8520.

17. The criteria for an initial compensable rating for lipoma of the abdomen have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7819.

18. The criteria for service connection for bilateral ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from April 2008 to October 2011.  

In July 2019, the Veteran testified at a Board hearing before the undersigned. In October 2019, VA advised the Veteran that a complete transcript could not be produced due to audio malfunctions and afforded the Veteran another opportunity to present testimony at another Board hearing. However, the Veteran's attorney waived the option for a re-hearing and requested that a decision be made based on the evidence of record.  

In January 2020, the Board remanded the issues of entitlement to increased evaluations for left shoulder strain, right elbow bursitis status post ulnar nerve transposition with residual scar; cervical strain, thoracolumbar strain and scoliosis, right ECU subluxation and surgical repair with residual scar, left ECU subluxation, and lipoma on the abdomen for new examinations addressing the current levels of severity of the Veteran's disabilities. 

Additionally, the Board remanded the issues of entitlement to service connection for a left knee disability, right shoulder disability, left elbow disability, right hand disability, hearing loss, psychiatric disorder to include posttraumatic stress disorder (PTSD), and a jaw disability for new VA examinations. Specifically, the Board found that examinations were needed to determine whether the Veteran's left elbow, right hand, and right shoulder pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided, and to determine the nature and etiology of the Veteran's claimed left knee disability, left elbow disability, right hand disability, and right shoulder disability. Further, the Board found that the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of his claimed psychiatric disorder, to include whether he meets the criteria for a diagnosis of PTSD based on a verified in-service stressor. The Board also found that the Veteran should be afforded a VA examination to determine whether he has a jaw disability that is secondary to his claimed psychiatric disorder. The Board further indicated that he should be afforded a VA audiological examination to determine the nature and etiology of his claimed hearing loss. As a final matter, the Board instructed that any additional VA and private treatment records, including Social Security Administration (SSA) records, should be obtained. 

Additional VA treatment records were added to the Veteran's claims file, and a letter was sent to the Veteran in January 2020, requesting that the Veteran submit, or authorize VA to obtain, any additional relevant private treatment records in support his claim on appeal. No response was received from the Veteran. SSA records were received in April 2020. The requested VA examinations and opinions were also obtained. The RO subsequently issued a Supplemental Statement of the Case (SSOC) in June 2021 and the case was returned to the Board for adjudication. 

With regard to specifically the issues of entitlement to service connection for a right shoulder disability, left elbow disability, and a right hand disability, after a review of the September 2020 VA medical opinions, the Board finds that these issues must be remanded again to ensure compliance with the Board's January 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the remaining issues, the Board finds that the requested development, in substantial compliance with the Board's January 2020 remand directives, has been completed. Id. 

Following the requested development, a February 2021 rating decision awarded service connection for the Veteran's left knee disability, a May 2021 rating decision awarded service connection for major depressive disorder, severe, recurrent with somatic symptoms disorder, and a June 2021 rating decision awarded service connection for temporomandibular joint (TMJ) disorder. The RO's grant of service connection for a left knee disability, psychiatric disorder, and jaw disorder constitute a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Id. 

The February 2021 rating decision also awarded a 20 percent evaluation for the Veteran's thoracolumbar strain and scoliosis and a 10 percent evaluation for his right extensor carpi ulnaris subluxation and surgical repair with residual scar. In a May 2021 rating decision, the RO awarded a 10 percent evaluation for the Veteran's left extensor carpi ulnaris (ECU) subluxation and an earlier effective date for the Veteran's 10 percent rating for right extensor carpi ulnaris subluxation. As higher ratings are available for these disorders, these issues remain in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). 

The February 2021 rating decision also awarded separate ratings for the Veteran's residuals scars of the right upper extremity associated with his service-connected wrist and elbow disorders, as well as radiculopathy of the right upper, left lower and right lower extremities associated with his service connected back and neck disorder, and the May 2021 rating decision awarded service connection for the Veteran's left shoulder scar associated with his service-connected left shoulder strain. The June 2021 rating decision granted earlier effective dates for the Veteran's bilateral lower extremity radiculopathy and right upper extremity radiculopathy ratings. Although these issues were not included in the June 2021 Supplemental Statement of the Case (SSOC), the Board finds that these issues were part of the Veteran's claims for an increased rating for his right wrist, right elbow, back, and neck disorders on appeal. Thus, the Board will address whether increased ratings are warranted for his right upper extremity radiculopathy, bilateral lower extremity radiculopathy, right upper extremity scars, and left shoulder scar. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993).

The Board notes that a separate appeal is being processed through the Appeals Modernization Act (AMA) Hearing Lane process for the issues of entitlement to service connection for gastroesophageal reflux disease (GERD), obstructive sleep apnea (OSA), and sarcoidosis claimed as a lung condition. As such, these issues will be addressed in a separate decision consistent with the AMA framework.

INCREASED RATING

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 

Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

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.

Additionally, in evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran.

Left Shoulder Strain and Left Shoulder Scar

The Veteran is currently in receipt of a 20 percent disability rating for his service-connected left shoulder strain pursuant to Diagnostic Code 5019-5201. He is also in receipt of a noncompensable evaluation for his associated left shoulder scar under Diagnostic Code 7802. He contends that he is entitled to higher disability ratings. 

The terms "major" and "minor" are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. The Veteran is right-hand dominant; therefore, his left shoulder is considered the "minor" shoulder for rating purposes.

Diagnostic Code (DC) 5019 pertains to bursitis and the code notes that bursitis will be rated on limitation of motion of the affected parts, as degenerative arthritis. See 38 C.F.R. § 4.71a, DC 5019. For the shoulders, this includes DCs 5200 through 5203 under 38 C.F.R. § 4.71a.

DC 5200 addresses ankylosis of the scapulohumeral articulation. DC 5201 addresses limitation of arm motion, while DC 5202 deals with other impairment of the humerus. Finally, DC 5203 addresses impairment of clavicle or scapula. See 38 C.F.R. § 4.71a. Initially, as will be discussed below, the record does not reflect, and the Veteran does not contend, that he has ankylosis, any humeral impairment, or dislocation, nonunion or malunion of the clavicle or scapula of the left shoulder. Therefore, ratings under 5200, 5202, or 5203 are not for application. 

Under DC 5201, prior to the regulatory change, for the minor and major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; 20 percent for is warranted for limitation midway between the side and shoulder level for the minor arm and 30 percent for the major arm, and; a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side for the minor arm, and 40 percent for the major arm. See 38 C.F.R. § § 4.71a, Code 5201.

In determining whether there is limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal ranges of shoulder motion include flexion (forward elevation) from 0 degrees to 180 degrees, abduction (elevation of the arm to the side) from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Shoulder level is considered to be 90 degrees from a person's side. Id.

As of February 7, 2021, under the amended rating criteria for DC 5201 for the minor and major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level with flexion and/or abduction limited to 90 degrees; a 20 percent rating is warranted for the minor arm and 30 percent for the major arm is warranted for limitation midway between the side and shoulder level with flexion and/or abduction limited to 45 degrees, and; a maximum 30 percent rating is warranted for the minor arm, and 40 percent for the major arm, for limitation of arm motion with flexion and/or abduction limited to 25 degrees from the side. See 38 C.F.R. § § 4.71a, Code 5201.

An October 2012 MRI of the left shoulder notes that there was no evidence of rotator cuff tear. The record notes that the study was somewhat limited in evaluating the glenoid labrum as described above; however, the visualized glenoid labrum appeared to be grossly unremarkable and intact on the present study. Inferolateral rotation of the distal acromion Type III shaped acromion which all may clinically contribute to impingement of the rotator cuff. Minimal or trace fluid was noted in the subcoracoid and subscapularis bursa.

A March 2014 VA treatment record notes that the Veteran had good range of motion in the bilateral shoulders, without pain, deformity, warmth, or tenderness. Subsequent medical treatment records note complaints of left shoulder pain and ongoing treatment. 

A statement received from the Veteran in June 2014 indicates that his bursitis kept acting up and was very painful. 

An April 2015 VA treatment record notes that the Veteran had a left acromioplasty and excision of subacromial bursa with exploration of rotator cuff, without providing the date of procedure. Another April 2015 record notes that he had left shoulder pain and left RTC repair in January 2015. 

VA treatment records dated from 2018 to 2020 note that the Veteran had left shoulder joint pain, disorders of bursae and tendons in the shoulder region, and left shoulder tendonitis.

At his Board hearing, the Veteran reported that his left shoulder pain had worsened, and he was receiving pain management treatment. 

A September 2020 VA examination notes diagnoses of left shoulder strain, left shoulder impingement, and left shoulder acromioplasty and excision of subacromial bursa with exploration of the rotator cuff. The examiner noted that overuse and repetitive motion can lead to a strain, which can in turn lead to impingement of tendons or bursa in the shoulder from bones of the shoulder. This then led to the acromioplasty and excision of subacromial bursa, left shoulder, with exploration of rotator cuff. Thus, the examiner indicated that the Veteran's additional disabilities were a progression of the previous diagnosis. 

At his examination, the Veteran reported that his shoulder flared up and locked up. He described experiencing chronic pain with movements, which was aggravated by any movement of left shoulder. He also reported experiencing numbness and tingling of the left hand intermittently and chronically, with or without, activity with occasional weakness in the left hand, resulting in his inability to open things or turn doorknobs. The examination notes that the Veteran reported that he had left shoulder surgery 2017 for a pinched nerve and had received a cortisone shot for treatment. The Veteran described his functional impact due to flare-ups as feelings of stiffness, sharp pain, and an electricity-type feeling that ran down his left arm. He also reported functional loss or functional impairment as limitation in his ability to lift and lift overhead. 

Upon range of motion testing, the Veteran's left shoulder flexion was to 90 degrees, abduction was to 95 degrees, external rotation was to 45 degrees, and internal rotation was normal (90 degrees). There was pain with flexion and abduction, evidence of pain with weightbearing, and evidence of crepitus. There was no additional functional loss noted after three repetitions. The examiner noted that pain, weakness, and fatigability significantly limited functional ability with repeated use over a period of time and during flare-ups; however, the examiner indicated that neither further impacted his left shoulder range of motion, restating the same range of motion measurements noted above. Left shoulder muscle strength was noted as 4 out of 5 with forward flexion and abduction. No muscle atrophy or ankylosis was noted. A rotator cuff condition was suspected; however, testing was negative in this regard. The Veteran did not have left shoulder instability, dislocation, or labral pathology; nor did he have a clavicle, scapula, acromioclavicular (AC) joint, sternoclavicular joint condition, loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner noted that the Veteran had a 5.5 centimeter by 1 centimeter anterior left shoulder scar that was neither painful nor unstable. The examiner noted that the Veteran's left shoulder disorder impacted his ability to work by limiting his ability to lift and perform overhead lifting. Finally, there was no objective evidence of pain on non-weightbearing of the left shoulder and passive range of motion of the left shoulder was the same as active range of motion. 

Left Shoulder Disorder

After a review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's left shoulder disorder under the former or current DC 5019-5201. In this regard, the Board noted that the evidence reflets that the Veteran's left shoulder disability does not limit the range of motion of his left arm to 25 degrees from his side. At worst, the Veteran's flexion was limited to 90 degrees and his abduction was limited to 95 degrees even considering flare-ups and functional impairment following repetitive motion. 

The Board acknowledges that the evidence reflects that the Veteran had complained of pain and additional functional loss due to pain, and the Veteran's currently assigned ratings for his left shoulder disability consider such functional loss due to painful motion. The evidence of record does not reflect that his left shoulder disability was so disabling as to approximate the level of impairment required for assignment of a higher rating under the limitation of motion criteria during the period on appeal. As noted above, the evidence reflects that, even with flare-ups, the Veteran did not experience any limitation of the left arm to 25 degrees from his side. The Board thus finds that the current ratings assigned for the left shoulder during the period on appeal sufficiently compensates the Veteran for the extent of his functional loss due to limited movement and pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The Board has also considered the evidence indicating that he Veteran experienced numbness and tingling. In this regard, as will be addressed below, the Board finds that a separate compensable evaluation is warranted for the Veteran's left upper extremity radiculopathy associated with his cervical spine disorder. Thus, to the extent that the Veteran has described symptoms of numbness and tingling in his left upper extremity, these symptoms are appropriately compensated, and assigning a separate rating under any other diagnostic code related to his left shoulder disorder would be tantamount to pyramiding. See 38 C.F.R. § 4.14.

The Board has considered the statements of the Veteran as to the extent of his left shoulder symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must weigh his statements against the factors as enumerated in the rating criteria discussed above, which in part, involves the examination of clinical data gathered by competent medical professionals. 

Additionally, the Board notes that a TTR (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30.

Here, although the Veteran reported that he had left shoulder surgery in 2017, the only record of any surgery in 2017 in the record is a right ulnar nerve neurolysis with reinforcement of anterior transposition and partial right medial epicondylectomy on March 30, 2017, which is unrelated to his left shoulder. Furthermore, although the record does indicate that the Veteran had a surgical procedure in January 2015 related to his left shoulder, there is no indication in the record that these resulted in at least one-month convalescence; surgery with severe postoperative residuals; or immobilization by cast, without surgery, of one or more major joint. 38 C.F.R. § 4.30(a). Thus, there is no evidence to warrant a higher disability rating, to include a temporary total disability rating due to convalescence, at any time during the period on appeal. 

Based on the foregoing, the Board finds that an increased evaluation is not warranted for the Veteran's left shoulder disorder at any time during the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and claim must be denied. See 38 U.S.C. § 5107.  

Left Shoulder Scar

Turning the Veteran's left shoulder scar, the Board notes that the pre-amended Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). In contrast, the amended Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage.

Prior to August 13, 2018, Diagnostic Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. 

Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804.

Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018).

Medical treatment records are silent for any complaints related to the Veteran's left shoulder scar. As noted above, the September 2020 VA examination indicates that the Veteran had one left shoulder scar measuring 5.5 centimeters by 1 centimeter, which was not painful or unstable.

After a review of the evidence, the Board finds that a compensable rating is not warranted for the period on appeal. The evidence does not reflect that the Veteran's left shoulder scar covers 144 square inches (929 square centimeters) or greater, as required for a 10 percent rating under both the pre-and post-amended rating criteria. 38 C.F.R. § 4.118, DC 7802. Rather, as noted above, the September 2020 VA examination indicates that the Veteran had one left shoulder scar measuring approximately 5.5 centimeters by 1 centimeter, which is no more than 5.5 square centimeters. Therefore, the Board finds that a compensable evaluation is not warranted for the Veteran's left shoulder scar under DC 7802. 

The Board has considered whether other ratings are applicable to the Veteran's left shoulder scar. A disability rating under Diagnostic Codes 7801 is not warranted because the Veteran's scar was not at least 6 square inches, as noted for a 10 percent rating under DC 7801 under both the pre- and post-amended criteria. Nor is a compensable rating warranted under DC 7804 because the Veteran's left shoulder scar was neither painful nor unstable, as required for a compensable rating under both the old and new rating criteria. 

Furthermore, there is no basis to assign a compensable rating for the Veteran's left shoulder scar pursuant to DC 7805. There are no additional symptoms noted at any time during the period on appeal, which have not already been considered under DC 7802, nor has the Veteran contended otherwise. Accordingly, the Board finds that the Veteran's impairment due to his left shoulder scar is more consistent with a noncompensable disability rating and that the level of disability necessary to support the assignment of a compensable rating under DC 7805 is absent. The Board additionally notes that DC 7800 is not applicable as it relates specifically to scars of the head, face, or neck. 38 C.F.R. § 4.118. 

Accordingly, the Board finds that a rating in excess of zero percent is not warranted for the period on appeal for the Veteran's left shoulder scar. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating for his left shoulder scar is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Right Elbow Bursitis and Right Upper Extremity Scars

The Veteran is currently in receipt of a 10 percent disability rating for his right elbow bursitis and status post ulnar nerve transposition pursuant to Diagnostic Code 5206-5019. He is also in receipt of a noncompensable evaluation for his right upper extremity wrist and elbow scars pursuant to Diagnostic Code 7805. He contends that his disabilities warrant higher disability evaluations. 

The use of a hyphenated DC indicates the rating is based on a residual condition. 38 C.F.R. § 4.27. Thus, the first DC 5206 denotes his underlying disability pertains to the elbow and forearm, while DC 5019 identifies the residual disability stemming from it is bursitis. In such cases, the applicable diagnostic criteria are the ones associated with the residual condition; in this case DC 5019.

As noted above, DC 5019 provides the disability is to be rated on the basis of limitation of motion of the affected part as degenerative arthritis. As the affected part is the elbow, the appropriate DCs for consideration are DC 5205, 5206, 5207, 5208 and 5213 as they contemplate limitation of motion. Notably, these Diagnostic Codes were not affected by the recent amendments to the musculoskeletal rating criteria.

Under DC 5205, limitation of motion is considered together with the presence of ankylosis. As the evidence discussed below does not establish the presence of ankylosis, DC 5205 is inapplicable.

Under DC 5206, a non-compensable disability rating is warranted if flexion is limited to 110 degrees regardless of whether the major or minor extremity is involved; a 10 percent disability rating is warranted if flexion is limited to 100 degrees regardless of whether the major or minor extremity is involved; and a 20 percent disability rating is warranted if flexion is limited to 90 degrees regardless of whether the major or minor extremity is involved. A 30 percent rating is warranted for flexion of the major elbow to 70 degrees and flexion of the minor elbow to 55 degrees. 

Pursuant to DC 5207, a 10 percent disability rating is warranted if extension is limited to 45 degrees regardless of whether the major or minor extremity is involved; a 10 percent disability rating is warranted if extension is limited to 60 degrees regardless of whether the major or minor extremity is involved; and a 20 percent disability rating is warranted if extension is limited to 75 degrees regardless of whether the major or minor extremity is involved. A 30 percent rating is warranted for extension of the major forearm to 90 degrees and extension of the minor forearm to 100 degrees.

Diagnostic Code 5208 provides that a 20 percent disability rating is warranted if flexion is limited to 100 degrees and extension is also limited to 45 degrees in either forearm. This is the only rating available under DC 5208.

Under DC 5213, a 10 percent disability rating is warranted if supination is limited to 30 degrees or less regardless of whether the major or minor extremity is involved; a 20 percent disability rating is warranted for limitation of pronation if motion is lost beyond the last quarter of the arc and the hand does not approach full pronation regardless of whether the major or minor extremity is involved; a 20 percent disability rating is warranted for limitation of pronation is motion is lost beyond the middle of the arc of the minor extremity; and a 30 percent disability rating is warranted for limitation of pronation is motion is lost beyond the middle of the arc of the major extremity.

For VA compensation purposes, normal flexion and extension of the elbow is from 0 degrees of extension to 145 degrees of flexion, pronation is from 0 to 80 degrees, and normal supination is from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I.

A February 2013 VA treatment record notes that the Veteran reported experiencing pain in the entire right arm, starting slightly above the elbow, associated with numbness and tingling of all five digits and cramping/spasms of 4th and 5th digit. His pain was described as burning, numbness and tingling for the most part, rated as a 5 out of 10. He also reported experiencing "popping" when bending the elbow.

A May 2013 VA treatment record notes that the Veteran had possible psoriatic plaque of the bilateral elbows. He had a swollen right olecranon bursa, mild redness, and warmth. Upon palpation, there was tenderness at the right olecranon, without tenderness at the bilateral elbow epicondyles. His right elbow flexion was full, with pain at the end-range; extension was to 5 degrees, limited by pain. His pronation and supination were full but painful. He had normal strength in the bilateral upper extremities. X-ray revealed no joint effusion. He had persistent pain. 

A March 2014 VA treatment record notes that the Veteran had normal range of motion in his bilateral elbows without pain, warmth, or deformity. 

A statement received from the Veteran in June 2014 notes that his bursitis was painful, and his injuries made it hard to do daily tasks. 

An April 2015 VA treatment record notes that evaluation of the elbow region revealed good range of motion and forearm rotation with no tenderness over the lateral epicondyle or radial tunnel. The posterior olecranon was nontender and there was no olecranon bursitis. There was a 10 centimeter surgical mature keloid scar of the right medial elbow. Right cubital tunnel evaluation revealed the ulnar nerve to be located just medial to the olecranon and just posterior to the medial epicondyle. The ulnar nerve was very tender and "subluxable" with palpation and with elbow flexion. His forearm contour was symmetric, and there was tenderness over the course of the right ulnar nerve. The record notes that the Veteran's most significant complaint was his ulnar nerve pain and dysfunction and he wanted to proceed with surgery to place the ulnar nerve in a better position, which would not improve his sensorimotor loss but may improve his pain. 

The record reflects that the Veteran had cubital tunnel release, right ulnar tunnel release, and right ulnar nerve neurolysis with revision anterior subcutaneous transposition surgery on April 24, 2015 and then developed subluxation of the ulnar nerve over the medial epicondyle. He then underwent a second VA surgery for right partial medial epicondylectomy and right ulnar nerve neurolysis with reinforcement of the anterior transposition on March 30, 2017.  

Notably, with regard to the April 24, 2015 surgery, a post-operative treatment record, dated April 27, 2015, notes that the Veteran had mild swelling at the elbow; his incisions were healing well; he had good range of motion of the digits and minimal swelling of the wrist. He did have a rash from the Steri-strips due to an allergic reaction. An April 20, 2015 treatment record notes that his swelling improved although he had erythema and papillar reaction extended further than before. A May 5, 2015 follow-up record notes that the swelling and rash had resolved. His incision was healing well; there was minimal swelling of the wrist; he had good range of motion of digits, wrist, and elbow. A May 12, 2015 record, two and a half weeks post-surgery, notes that his swelling and rash had completely resolved; his incisions were healing well. There was minimal swelling of the wrist, and he had good range of motion of the digits, wrist, and elbow. He was instructed to follow-up again in one month and avoid strenuous activity with the right arm. 

The next relevant record is dated June 25, 2015, which notes that the Veteran was two months status post-surgery. Examination of the right elbow revealed full range of motion, positive for tenderness anterior to the surgical scar in the distal third, which appeared to correspond to the area where the sling was located. His light touch was intact in all digits, which had previously been absent in the right RF and SF. The record notes that he was able to use his right arm as tolerated. 

Regarding the March 30, 2017 surgical procedure, the Board notes that following completion of the procedure. The Veteran was discharged home. An April 5, 2017 record notes that the Veteran presented for a scheduled post-operative follow-up appointment and indicates that splint removal was deferred. The Veteran had reported that he had been vomiting blood since his surgery, and he subsequently underwent a surgical procedure for hematemesis, secondary to erosive gastritis, on April 14, 2017. 

An April 17, 2017 medical record notes that the Veteran's splint and sutures were removed. He had a well approximated surgical incision at the anterior medial epicondyle area secured with sutures. There was no drainage, redness, or warmth. The Veteran was advised that he was permitted to do general range of motion in extension but to limit flexion to no more than 45 degrees to avoid irritation of the ulnar nerve. He was to avoid any strenuous lifting or pushing with the arm for eight weeks from the date of surgery. He was advised to wear a brace on his elbow during the day when active and a sling/shoulder immobilizer when out in public. 

A May 18, 2017 record notes that the Veteran reported swelling since the last visit; he had pain localized anterior to the incision; he did not feel any subluxation of the nerve, as he had prior to this surgery. Examination of the right elbow revealed a well healed surgical incision on the anterior medial epicondyle area. His active flexion was to 90 degrees, extension was to 5 degrees, and supination and pronation were near normal limits. No atrophy was noted. The Veteran was advised that he could gradually begin working on active range of motion without weight to full extension. He was to avoid any weight to the right upper extremity until his next visit if cleared by the surgeon. No additional follow-up records for the Veteran's surgical procedure were noted throughout 2017. 

A March 2018 medical treatment record notes that he still had some pain in the right medial elbow with strenuous use but noted significant improvement in his strength since his surgery in 2015. He still had difficulty opening a bottle of water, however. Examination of the Veteran's right upper extremity revealed no subluxation of the transposed ulnar nerve with extension/hyperflexion of the right elbow; the nerve was stable. The Veteran reported that he still felt some popping, but there was only mild crepitus in the posterior elbow on examination. The record additionally notes that the Veteran had some pain and swelling in the medial elbow; however, his ulnar nerve function had improved significantly and there is no residual subluxation.  

At his July 2019 Board hearing, the Veteran reported that his right arm sticks and his hand locked up. He appears to suggest that he did not have any range of motion, although it is unclear whether this was related to his arm, elbow, or hand. He did, however, indicate that he experienced right elbow pain. He reported that he tries not to lift anything or irritate it, and he was treating it was medication, icing, and applying heat. 

A July 2020 VA treatment record notes complaints of right elbow pain. The Veteran reported cramping/deformity of the hand associated with pain. He also reported bulging of the nerve over the previous transposition site. He had continued numbness of the hand. 

The Veteran was afforded a VA examination in September 2020 for his right elbow and forearm disorder. The examination notes diagnoses of right elbow bursitis and status post ulnar nerve transposition with residual scar. The Veteran reported that he experienced symptoms of frequent locking of the elbow and chronic swelling; it becomes inflamed, swelling to the size of a softball, requiring surgical intervention.  He reported experiencing chronic pain in the elbow, with or without activity. He also noted numbness, tingling, and weakness in his right hand, indicating that he was unable to open jars and holding something for a few seconds became painful. The Veteran endorsed flare-ups, described as stiffness, tightness, and locking. He described his functional loss or functional impairment as limiting his ability to grasp and lift, again noting that he that he was unable to open jars and holding something for a few seconds became painful. 

Upon range of motion testing of the right elbow, the Veteran's flexion was to 100 degrees; extension, forearm supination, and forearm pronation were normal. The examination indicates that the Veteran's limitation in range of motion was due to pain, discomfort, and frequent locking. There was moderate tenderness or pain on palpation at the medial and lateral elbow. There was evidence of pain with weightbearing and crepitus. There was no additional functional loss after three repetitions. The examiner indicated that pain, weakness, and fatigability significantly limited functional ability with repeated use over a period of time; however, his range of motion was not affected, noting the same range of motion measurements as above. Additionally, the examiner indicated that pain, weakness, and fatigability did not significantly limited functional ability during flare-ups, again noting the same range of motion measurements as above. Right elbow muscle strength was normal, and there was no muscle atrophy. The Veteran did not have ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examination notes that the Veteran had two related scars: one right lateral elbow scar, measuring 9 centimeters by 0.5 centimeter; and one superior medial right elbow scar, measuring 8.5 centimeters by 0.5 centimeter. Neither scar was painful or unstable. Due to his right elbow and forearm disorder, the Veteran was limited in his ability to lift heavy items and in activities involving flexion of the elbow. The Veteran did not use any assistive device; there was no pain with non-weightbearing; and his passive range of motion was the same as his active range of motion. 

In addition, in pertinent part, the Veteran's September 2020 wrist examination notes that he had one right lateral anterior wrist scar, measuring 6.5 centimeters by 0.1 centimeter, which was neither painful nor unstable. 

Right Elbow Bursitis 

As an initial matter, based on the medical evidence of record, an inferred claim of entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 has been raised by the record as part of the appeal for a higher rating for the service-connected right elbow bursitis and status post ulnar nerve transposition. As noted above, a TTR (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30.

Here, the Board finds that a TTR is warranted for the period from April 24, 2015 to June 24, 2015. In this regard, the Board notes that the evidence reflects that the Veteran underwent cubital tunnel release, right ulnar tunnel release, and right ulnar nerve neurolysis with revision anterior subcutaneous transposition surgery on April 24, 2015. He subsequently received follow-up treatment, to include for his surgical incision. Prior to June 25, 2015, he additionally appeared to require the use of a sling. However, the June 25, 2015 record notes that the Veteran was permitted to use his right arm as tolerated and no findings were made with regard to his surgical incision or continued use of a sling. There is no evidence, lay or medical, indicating that the Veteran had incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more beyond June 25, 2015. Therefore, the Board finds that a TTR is warranted for the period from April 24, 2015 to June 24, 2015, but no later, for his right elbow surgery. 38 C.F.R. § 4.30.

Additionally, the Board finds that a TRR is warranted for the period from March 30, 2017 to May 17, 2017 for the Veteran's right partial medial epicondylectomy and right ulnar nerve neurolysis with reinforcement of the anterior transposition. In this regard, the Board notes that the Veteran had surgery on March 30, 2017, and prior to March 18, 2017, the Veteran was advised to wear a brace on his elbow during the day when active and a sling/shoulder immobilizer when out in public. However, the March 18, 2017 record neither made note of any concerns related to his surgical incision, nor instructed the Veteran that he needed to continue using a sling or brace. There is no evidence, lay or medical, indicating that the Veteran had incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more beyond May 17, 2017. Thus, the Board finds that a TTR is warranted for the period from March 30, 2017 to May 17, 2017, but no later, for his right elbow surgery. 38 C.F.R. § 4.30.

For the remainder of the period on appeal, notwithstanding the periods from April 24, 2015 to June 24, 2015 and March 30, 2017 to May 17, 2017 for which the Board finds that temporary total ratings are warranted, the Board finds that a rating in excess of 10 percent for the Veteran's right elbow bursitis and status post ulnar nerve transposition is not warranted. 

As noted above, in order to receive a rating of 20 percent or more based on limitation of flexion, flexion must be limited to 90 degrees, or flexion of the minor elbow must be limited to 70 degrees. 38 C.F.R. § 4.71a, DC 5206. Here, the evidence reflects that, although the Veteran does indeed have symptoms of pain and locking, causing limited motion, at worst, his flexion was noted as limited to 90 degrees. Based on the foregoing, the Board finds that the limitation of motion caused by the Veteran's right elbow disability warrants the currently assigned 10 percent rating. See id. 

In making this determination, the Board has considered whether there is any additional functional loss not contemplated by the rating assigned. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Deluca, 8 Vet. App. at 206; Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). Although the Veteran's right elbow disability has resulted in pain, there is no evidence of record indicating that it caused additional functional impairment in terms of range of motion. See Mitchell, 25 Vet. App. at 33. In this regard, the Board notes that the September 2020 VA examination indicates that there was no additional functional loss in terms of range of motion with repeated use over time or during flare-ups, and the Veteran himself has not reported any additional functional loss or impairment. Therefore, in this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran's right elbow disability is not warranted based on functional impairment. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. 

The Board has also considered whether separate or higher disability ratings are warranted under an alternative diagnostic code relating to disabilities of the elbow and forearm. However, the evidence of record does not show limitation of extension to 75 degrees, forearm flexion limited to 100 degrees with extension limited to 45 degrees, joint fracture, nonunion of the radius and ulna, impairment of the radius or ulna, or impairment of the supination and pronation. Indeed, at worst, the Veteran's extension was limited to 5 degrees and supination and pronation were noted as normal. See 38 C.F.R. § 4.71a, DCs 5205, 5207, 5208, 5209, 5210, 5211, 5212, 5213. Accordingly, separate or higher disability ratings are not warranted under any other diagnostic code.

To the extent that the Veteran has reported symptoms of right upper extremity numbness and tingling, the Board notes that, as will be addressed below, the Veteran is currently in receipt of a separate rating for his service-connected right upper extremity radiculopathy associated with his cervical spine disorder. Thus, to the extent that the Veteran has described symptoms of numbness and tingling, these symptoms are appropriately compensated, and assigning a separate rating under any other diagnostic code related to his right elbow disorder would be tantamount to pyramiding. See 38 C.F.R. § 4.14.

The Board has considered the statements of the Veteran as to the extent of his right elbow symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must weigh his statements against the factors as enumerated in the rating criteria discussed above, which in part, involves the examination of clinical data gathered by competent medical professionals. 

Based on the foregoing, notwithstanding the periods from April 24, 2015 to June 24, 2015 and March 30, 2017 to May 17, 2017 for which temporary total ratings are warranted, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right elbow disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and claim must be denied. See 38 U.S.C. § 5107.  

Right Upper Extremity Scars

Turning to the issue of the Veteran's right upper extremity scars, after a review of the evidence, the Board finds that an initial compensable rating is not warranted for the period on appeal. There is no evidence of record, nor has the Veteran claimed, that his scars were painful, unstable, covered a total area of at least 6 square inches (39 square centimeters), or resulted in any functional impairment. Thus, a higher disability rating is not warranted under either the pre- or post-amended rating criteria. 38 C.F.R. § 4.118, DC 7801-7805. Moreover, the Board notes that DC 7800 is not applicable as it relates specifically to scars of the head, face, or neck. 38 C.F.R. § 4.118.

Accordingly, the Board finds that an initial compensable rating is not warranted for the period on appeal for the Veteran's residual right upper extremity scars. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Bilateral Extensor Capri Ulnaris (ECU)

The Veteran is currently assigned a 10 percent disability rating for his right extensor capri ulnaris (ECU) subluxation pursuant to Diagnostic Code 5299-5215; He is also in receipt of a noncompensable evaluation prior to September 15, 2020 and a 10 percent rating thereafter for his left ECU subluxation pursuant to Diagnostic Code 5215. He contends that his bilateral ECU disability warrants a higher evaluation.  

Diagnostic Code 5215 provides for the evaluation of limitation of motion of the wrist. See 38 C.F.R. § 4.71a. A 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. This is the maximum rating based on limitation of motion of the wrist under this Diagnostic Code. A higher schedular rating is only warranted when there is evidence of ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5214. These Diagnostic Codes were unaffected by the recent amendments to the musculoskeletal rating criteria. 

A February 2013 medical treatment record notes that the Veteran had normal wrist range of motion. A March 2014 VA treatment record notes that the Veteran had normal range of motion in his bilateral wrists. 

A March 2015 VA treatment record notes that the Veteran had right wrist flexion to 60 degrees. The record notes that there was midcarpal instability, scaphoid instability. There was also clicking noted of the wrist with pronation with no distal radial ulnar instability. The right dorso ulnar wrist had no subluxation. He had full range of motion of all fingers with no evidence of stenosing flexor tenosynovitis or triggering.

At his July 2019 Board hearing, the Veteran reported that he had carpal tunnel surgery on his right wrist during service, and he did not have the strength to open things for a long time. He described receiving some treatment related to his right elbow, and reported that in addition to that treatment, he was receiving treatment for midcarpal tunnel in his wrist.  

The Veteran was afforded a VA examination in September 2020 for his bilateral wrists. The examination notes diagnoses of right ECU subluxation with surgical repair and left ECU subluxation. The Veteran reported that his wrist would lock and pop; he experienced a shooting pain and tightness with certain movements. He additionally noted that it was aggravated by lifting, bending, and twisting his wrist. The examination notes that the Veteran underwent right ulnar nerve neurolysis with revision in April 2015. The Veteran was right hand dominant, and he endorsed flare-ups in which he reported that it became stiffer, more painful, and tender to the touch. He described his functional loss or functional impairment as limitation in twisting his wrist, flexion, and lifting; he also had limitation in his ability to open and close things, put on clothes, and turning a doorknob. 

Upon range of motion testing, the Veteran's right wrist palmar flexion was measured to 50 degrees; dorsiflexion was to 40 degrees; ulnar deviation was to 15 degrees; and radial deviation was normal. There was evidence of pain on weightbearing. Left wrist range of motion was normal, and there was no pain noted on examination. There was no evidence of pain with weightbearing on the left. The examination notes that there was no additional functional loss after three repetitions or during flare-ups bilaterally, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. Muscle strength was normal and there was no muscle atrophy. The Veteran did not have ankylosis of either wrist. Due to his bilateral wrist disorder, the Veteran was limited in his ability to twist, flex, and lift. There was no objective evidence of pain with non-weightbearing bilaterally, and passive range of motion was the same active range of motion bilaterally. 

Right Wrist ECU

After a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right ECU subluxation. As noted above, a 10 percent disability rating is the maximum schedular rating available for limitation of motion of the wrist, without a showing of ankylosis. Here, there is no evidence, medical or lay, indicating that the Veteran's right wrist was in a fixed position and cannot be moved at any time during the period on appeal. Therefore, the Board finds that his right wrist disability does not more closely approximates ankylosis of the right wrist. As a result, Code 5214 is inapplicable, and a rating in excess of 10 percent is not warranted on this basis.

Additionally, even when considering any functional limitations due to pain identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss did not equate to ankylosis of the right wrist. Thus, a higher rating is not warranted on this basis. 

Finally, although the Board acknowledges that the Veteran underwent right ulnar nerve neurolysis with revision in April 2015, the Board notes that the Veteran is now in receipt of a temporary total rating for his period of convalescence following this surgical procedure in connection with his service-connected right elbow bursitis and status post ulnar nerve transposition, and there is no other evidence, medical or lay, indicating that the Veteran had any other surgical procedure for his right ECU at any time during the period on appeal. Indeed, the Veteran himself has only reported that he had right wrist surgery during his active service. Thus, the Board finds that the preponderance of the evidence of record does not show that the Veteran had recovery from surgery requiring 30 days or more of convalescence, and a TTR is not warranted under 38 C.F.R. § 4.30.

Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected right ECU subluxation. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Left Wrist ECU

After a review of the evidence, the Board finds that an initial compensable evaluation prior to September 15, 2020 and in excess of 10 percent thereafter is not warranted for the Veteran's left ECU subluxation. 

In this regard, the Board notes that there is no evidence prior to September 15, 2020 addressing the Veteran's left wrist symptoms. Medical treatment records are silent for any complaints or treatment related to his left wrist ECU; the February 2013 and March 2014 treatment records in fact indicate that the Veteran had normal range of motion in his left wrist. Furthermore, at his July 2019 Board hearing, the Veteran did not mention any complaints related to his left wrist. Thus, the Board finds that there is no evidence to support an award of a 10 percent disability rating at any time during the period prior to September 15, 2020. 

Regarding the period from September 15, 2020, as discussed above, a 10 percent disability rating is the maximum schedular rating available for limitation of motion of the wrist, without a showing of ankylosis. Here, there is no evidence, medical or lay, indicating that the Veteran's left wrist was in a fixed position and cannot be moved at any time during the period on appeal. Accordingly, the Board finds that his left wrist disability does not more closely approximates ankylosis of the left wrist, and a rating in excess of 10 percent is not warranted on this basis.

With regard to assigning a higher disability rating based on functional loss for the period from September 15, 2020 as contemplated by the Court's holding under DeLuca, the Board notes the Veteran's complaints of pain. However, the Veteran is already receiving a 10 percent evaluation under Diagnostic Code 5215 for limitation of motion, which is the maximum evaluation allowed for limitation of motion of the wrist absent ankylosis.

Based on the foregoing, the Board finds that an initial compensable rating prior to September 15, 2020 and a rating in excess of 10 percent thereafter for the Veteran's left ECU subluxation is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Cervical Strain and Upper Extremity Radiculopathy

The Veteran is currently in receipt of a 10 percent disability evaluation for his cervical strain pursuant to Diagnostic Code 5237. He has also been assigned a 20 percent rating prior to September 15, 2020 and a 40 percent rating thereafter for his associated right upper extremity radiculopathy under Diagnostic Code 8510. He contends that he is entitled to higher disability ratings; he additionally contends that he is entitled to a separate rating for his left upper extremity radiculopathy. 

Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a.

Under the General Rating Formula, both before and after the February 7, 2021 rating criteria amendments, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula.

A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id.

Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5).

Alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes prior to February 7, 2021, IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. 38 C.F.R. § 4.71a, DC 5243. IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. Id. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1): For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id.

As noted above, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders and, while DC 5237 was not revised, DC 5243 for IVDS was modified to clarify that DC 5243 is to be assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root"; otherwise, "assign [DC] 5242 for all other disc diagnoses." However, the rating criteria addressing IVDS based on incapacitating episodes was otherwise unchanged. 

A June 2011 pre-discharge medical treatment record notes that the Veteran reported neck pain, and pain and paresthesias in both arms with occasional weakness. The record notes that the Veteran had neck pain consistent with cervical radiculopathy with confirming MRI. A diagnosis of cervical degenerative disc disease and bilateral upper extremity radiculitis was noted. 

A June 2012 medical treatment record notes that the Veteran reported having neck pain about three years ago; he had an "about okay cervical" MRI. 

A December 2012 medical treatment record notes that the Veteran had neck pain and stiffness with a shooting pain down his arms to his hands. He reported that he dropped his cell phone after holding it for a while. Another December 2012 medical treatment record notes that the Veteran had cervical spinal stenosis with pain radiating into his arms, more on the right. 

A February 2013 medical treatment record notes that the Veteran reported pain located centrally in the entire spine from the base of the neck down to his tail bone. The pain was worse in the morning and associated with morning stiffness that lasted about 45 minutes. 

Social Security Administration (SSA) records contain records dated in March 2013 and June 2013, noting that the Veteran reported experiencing neck pain that radiated to his right hand. 

A June 2013 VA treatment record notes that the Veteran reported experiencing neck pain that shot across his shoulders. A July 2013 medical treatment record notes that the Veteran had bilateral arm pain, without evidence of cause for upper extremity symptoms. 

A March 2014 VA treatment record notes that the Veteran had chronic neck pain that radiated to his bilateral arms. He had bilateral upper extremity numbness. Examination of his cervical spine revealed mildly decreased range of motion. There was no paraspinal muscle pain. Review of the imaging studies of the neck and spine did not show signs of inflammatory arthritis such as ankylosing spondylitis or rheumatoid arthritis. 

An October 2014 MRI notes that the Veteran reported neck pain. The impression notes cervical spinal stenosis was present. 

A March 2015 VA treatment record notes that the Veteran reported pain in the posterior neck with extension and left rotation. He was positive for left Tinel's test in the supraclavicular area with a "shock" into the left lateral arm.

A May 2015 VA treatment record notes that the Veteran had neck pain with "arms radiculopathy". He had minimal degenerative disc disease, and he reported a disc bulge in the past. 

Private medical treatment records dated from March 2016 through September 2016 note that the Veteran had full range of motion of the cervical spine. His motor strength of the bilateral upper extremities was noted as normal. 

A May 2019 VA treatment record notes that the Veteran had stenosis and bulging disc of the neck. A November 2019 VA treatment record notes that the Veteran had full range of motion of the neck. 

At his July 2019 Board hearing the Veteran testified that he experienced symptoms of radiculopathy where the pain started in his neck and went down his arms. He reported that he was ordered a special neck brace to use at night. He indicated that turning his head was difficult because his neck would lock, tighten, and crack. 

A March 2020 medical treatment record notes that the Veteran reported chronic neck pain. A June 2020 medical treatment record notes that the Veteran had chronic cervicalgia with characteristics of radiculopathy to right arm.

An August 2020 MRI of the neck showed mild degenerative findings, unchanged; similar cervical lymphadenopathy in keeping with sarcoidosis. 

The Veteran was afforded a VA examination in September 2020, which notes diagnoses of cervical strain, cervical stenosis, and right upper extremity radiculopathy. The examiner indicated that the Veteran's cervical MRI in 2011 showed multilevel central cervical stenosis, which can be linked to his service-connected cervical strain, and cervical strain can cause irritation or inflammation of the nerve leading to radicular symptoms. The Veteran reported that he experienced chronic neck stiffness and constant headaches; he indicates that his neck would swell, and he would get a knot in the back of his neck. He reported having numbness and tingling down both arms and hands, and he had constant weakness in his hands. He reported that he received cortisone shots for treatment. The Veteran endorsed flare-ups, described as neck stiffness and sharper pain. He described his functional loss as limited range of motion in turning side to side and looking up. 

Upon range of motion testing, forward flexion was limited to 40 degrees, extension was limited to 25 degrees, right lateral flexion was limited to 25 degrees, left lateral flexion was limited to 40 degrees, and right and left lateral rotation were limited to 60 degrees. The examiner indicated that pain on examination caused functional loss. There was objective evidence of localized tenderness or pain on palpation of the cervical paraspinals, moderate in severity. There was no pain on weightbearing. There was no additional functional loss or loss of range of motion after three repetitions. The examination notes that pain, weakness, and fatigability significantly limit functional ability with repeated use over a period of time. However, the examiner indicated that his range of motion remained unchanged, noting the same measurements as above. The examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups, indicating no change in his range of motion measurements. The Veteran did not have guarding or muscle spasms. His muscle strength was noted as normal and he did not have muscle atrophy. The examination notes a normal left upper extremity sensory examination, and decreased sensation in the right upper extremity. The examiner indicated that the Veteran had moderate right upper extremity constant pain, moderate right upper extremity paresthesias, and moderate right upper extremity numbness. No symptoms were noted regarding the left upper extremity. The examiner indicated that the Veteran had moderate right upper extremity radiculopathy, affecting the upper, middle, and lower radicular groups. The Veteran did not have IVDS. He occasionally used a soft brace at home for his cervical strain. There was no objective evidence of pain on non-weightbearing, and his passive range of motion was the same as active. 

Cervical Spine Disorder

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent for the Veteran's service-connected cervical spine disorder. 

At no time during the period on appeal was the Veteran's cervical spine disorder manifested by forward flexion greater than 15 degrees, but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees. See 38 C.F.R. § 4.71a, DCs 5235 to 5242. At worst, the September 2020 VA examination notes that forward flexion was limited to 40 degrees with no additional loss of range of motion during flare-ups or after repetitive use, and his combined range of motion of the cervical spine exceeded 170 degrees. Indeed, prior to this VA examination, the medical evidence of record reflects that, although the Veteran experienced neck pain, he generally had full range of motion of the cervical spine. 

The Board has considered alternative diagnostic codes, and there is no alternative diagnostic code by which to assign a higher disability rating. Under Diagnostic Codes 5003 and 5010, both before and after the rating criteria amendments, a 10 percent evaluation is the highest possible evaluation for the Veteran's arthritis of the cervical spine. See 38 C.F.R. § 4.71a. Moreover, other than radiculopathy, which will be addressed below, a separate rating is not warranted for any other associated neurological disorder as the record does not reflect any objective evidence of neurological symptoms associated with the Veteran's service-connected neck disability. See id., Note 1. Accordingly, the Board finds that a separate rating for a neurological disability is not warranted.

Additionally, the Board finds that a higher rating is not warranted under the IVDS formula. In order for a higher rating to be warranted under the IVDS formula both before and after the February 7, 2021 amendments, the evidence of record must demonstrate IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the evidence of record does not show any incapacitating episodes requiring prescribed bedrest and treatment by a physician due to his cervical spine disorder. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1).

The Board has also considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). These factors have been taken into consideration and are already contemplated in the currently assigned rating under DC 5237. As previously indicated, the September 2020 VA examination indicates that there was no additional functional loss during flare-ups or with repetitive use. Thus, any additional limitation due to pain cannot be established to more nearly approximate a finding of forward flexion greater than 15 degrees, but not greater than 30 degrees; or a combined range of motion of the cervical spine not greater than 170 degrees. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. 32; see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. The claim of entitlement to an evaluation in excess of 10 percent for the Veteran's cervical spine disorder must be denied.

Upper Extremity Radiculopathy

Diagnostic Code 8510 provides the rating criteria for paralysis of upper radicular group. Complete paralysis of the nerve is rated as 70 percent disabling for the major arm, and as 60 percent disabling for the minor arm. Disability ratings of 20 percent, 40 percent, and 50 percent are assignable for incomplete paralysis that is mild, moderate, or moderately severe in degree, for the major arm, and as 20, 30, and 40 percent, for the minor arm, respectively. 38 C.F.R. § 4.124a, DC 8510. As noted above, the Veteran is right-hand dominant.

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

After a careful review of the record, resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 40 percent is warranted throughout the entire period on appeal for the Veteran's service-connected radiculopathy of the upper right extremity. In this regard, the Board finds that the Veteran has consistently reported symptoms of pain, numbness, and tingling throughout the appeal period. Furthermore, the only medical evidence of record addressing the Veteran's functional impairment of the right upper extremity radiculopathy during this period is the September 2020 VA examination, which provided the basis for the 40 percent rating for the Veteran's right upper extremity radiculopathy. As such, the Board does not find that the available evidence during this period supports the assignment of staged ratings. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that a 40 percent evaluation is warranted for the entire period on appeal for the Veteran's service-connected right upper extremity radiculopathy.

A rating higher than 40 percent is not warranted any time during the period on appeal, however. There is no evidence, nor does the Veteran claim, that he experienced moderately severe symptoms at any time during the appeal period. Thus, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal period. Thus, the Board finds that entitlement to a rating of 40 percent, but no higher, for the upper right extremity is warranted for the entire appeal period. 

Additionally, the Board finds that a separate 20 percent disability rating is warranted for the Veteran's left upper extremity radiculopathy throughout the period on appeal. In this regard, the Board acknowledges that the September 2020 VA examiner indicated that the Veteran did not have left upper extremity radiculopathy or left upper extremity symptoms; however, this finding appears to contradict the Veteran's reports of left upper extremity numbness, tingling, and weakness during his examination. Furthermore, the Board notes that the medical treatment records consistently note left upper extremity symptoms, including pain and numbness. Finally, the Veteran's June 2011 pre-discharge examination notes that the Veteran had bilateral upper extremity radiculitis and a May 2015 VA treatment record notes that the Veteran had neck pain with "arms radiculopathy. Accordingly, the Board affords the Veteran the benefit of the doubt and finds that a separate 20 percent disability rating is warranted for left upper extremity radiculopathy for the entire period on appeal. There is, however, no competent evidence of moderate left upper extremity radiculopathy symptoms to warrant the next available rating of 30 percent under DC 8510. 

To the extent that the Veteran contends that a rating in excess of 40 percent is warranted for his right upper extremity radiculopathy and a rating in excess of 20 percent is warranted for the left upper extremity radiculopathy, the Board notes that while the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service connected radiculopathy of the upper right and left extremity are no more than moderately severe and mild in severity respectively. No medical professional has provided any opinion that the Veteran's symptoms are best characterized as a higher level of impairment or incomplete paralysis. Even considering the subjective complaints, there is no evidence to suggest that the Veteran's impairment results in a higher level of incomplete paralysis for either extremity. As such, a rating for the right upper extremity in excess of 40 percent and a rating in excess of 20 percent for the left upper extremity is not warranted. 

Accordingly, the Board finds that a rating of 40 percent, but no higher, is warranted throughout the period on appeal for his right upper extremity radiculopathy and also finds that an initial rating of 20 percent, but no higher, is warranted for left upper extremity radiculopathy. 

Thoracolumbar Strain and Bilateral Lower Extremity Radiculopathy

Throughout the period on appeal, the Veteran has been in receipt of the following disability ratings for his thoracolumbar strain and scoliosis: a 10 percent rating from October 31, 2011; a 100 percent rating from February 20, 2019; a 10 percent rating from April 1, 2019; and a 20 percent rating from September 15, 2020. These ratings have been assigned pursuant to Diagnostic Code 5237. Additionally, the Veteran has been assigned a 20 percent evaluation for his associated left lower extremity radiculopathy and a 20 percent evaluation for his associated right lower extremity radiculopathy pursuant to Diagnostic Code 8520. The Veteran contends that he is entitled to higher evaluations. 

As noted above, back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes. In addition to the rating criteria noted in the previous section, disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id.

A December 2012 VA treatment record notes that the Veteran had low back pain described as a poking pain with needles and numbness going down legs. He indicated that the pain was better with time and sleeping; also, walking short distances helped the pain, although walking made his legs feel weak and like they would give out. He described his average pain level as a 6 out of 10. 

A February 2013 VA treatment record notes that the Veteran had pain in his entire back. He indicated that he was unable to say exactly when the pain began, but he noticed that over the past few years, his entire back was painful and "uncomfortable." His pain was located centrally over the entire spine, from the base of the neck down to tailbone and spreading horizontally to the side of the hips, sometimes also running down the back of his thighs. The pain was worse in the morning and associated with morning stiffness lasting about 45 minutes; it was also worse with extension and "constantly stooping forward". It was associated with some numbness and tingling in the buttocks and posterior thighs. Physical examination revealed range of motion limited to only about 100 degrees of flexion of the lumbar spine, which was not limited by pain. He also had limited lumbar extension to about 10 degrees, and side-bending and rotation were about 90 percent of full range.

A March 2013 medical evaluation, associated with SSA records, notes that the Veteran had low back pain that radiated to both ankles. He had numbness in both legs. He denied any bowel or bladder incontinence or retention. His back pain was exacerbated by increased activity. The Veteran was independent with his activities of daily living. Upon physical examination, the Veteran was able to walk on his heels, toes, and squat; his gait was heel-to-toe without deviation. He was able to stand one legged on either leg. The record notes that he was able to put on and remove his shoes and socks independently. Lower extremity muscle strength was normal.  

A June 2013 VA treatment record notes that the Veteran reported that he was told that he had lumbar stenosis in service; the provider noted that x-rays here show some degenerative changes in the lumbar area. The Veteran reported that he woke up every morning with low back stiffness that improved in a few hours; he had continued pain in the entire back during the rest of the day. The impression notes that the Veteran had "possible" ankylosing spondylitis, although most objective signs were absent, and x-rays do not show sacroiliitis. These records also reflect that the Veteran had bilateral leg pain; his active problem list notes lumbar radiculopathy. 

June 2013 SSA records note that the Veteran had back pain with numbness in his legs. The records indicate that the Veteran had lumbar disc disease on MRI; however, current physical findings were unremarkable for any significant limitations or abnormalities. He was independent with activities of daily living and transferred at a reasonable pace. 

A July 2013 medical treatment record notes that there was no definite ankylosing spondylitis. Another July 2013 record notes complaints of bilateral leg pain that started three years prior. He indicated that he experienced occasional falls without prior instability or dizziness. The pain worsened when he leaned forward and was better when he straightened his back. 

A March 2014 VA treatment record notes that the Veteran had chronic lower back pain and bilateral lower extremity numbness. His pain was generally described as a 5 out of 10 and 9 out of 10 at its worst. He reported having morning stiffness lasting for 30 minutes. Examination of the thoracolumbar spine revealed normal range of motion without any evidence of kyphosis or scoliosis. He did have decreased range of motion with flexion, without spasms, in the lumbar spine. The impression notes that the Veteran had back pain with extremity numbness likely due to degenerative joint disease of the back with pinched nerves. 

An October 2014 MRI of the lumbar spine notes that the Veteran reported low back pain with bilateral leg numbness. The impression notes that the Veteran had spinal stenosis. 

A May 2015 VA treatment record notes that the Veteran had spinal canal stenosis. He also had a history of bilateral lower extremity paresthesias and weakness for about four years, which resulted in occasional falls. 

Private medical treatment records date from March 2016 through September 2016 reflect that the Veteran had normal lumbar spine examinations, and motor strength of the bilateral lower extremities was noted as normal. 

A February 13, 2019 emergency department record notes that the Veteran reported low back pain, indicating that he was unable to walk that morning due to his pain. The Veteran reported that his back pain was exacerbated two days prior when lifting a gallon of milk; he felt a sharp pain at that time and had spasms since. He also described a diffused pattern of paresthesias in both legs. He denied any bowel or bladder incontinence. Approximately five days later, on February 18, 2019, the Veteran indicated that, while he still experienced severe pain, the intensity had decreased to a 6 out of 10; however, he was still unable to get out of bed or ambulate. The Veteran was scheduled to undergo surgery later that week. 

The record reflects that the Veteran had an excision of lamina of the lumbar vertebra for decompression of the spine on February 20, 2019. He subsequently had transforaminal selective lumbar epidural injections with cortisone to S1 and L5 in October 2019. 

At his July 2019 Board hearing, the Veteran reported that his back had worsened over the past year to the point that he needed surgery earlier that year, in February. Since his surgery, he had some physical therapy which helped his ambulation, improving from walking with a walker to a cane. The Veteran reported that he still had decreased range of motion as he was unable to bend down to touch his toes. He also sometimes needed help showering or toileting and putting on his shoes and socks. However, the Veteran had shown overall improvement in his mobility since his surgery, going from being completely immobile from the waist down to now ambulating with a cane. The Veteran also described having nerve symptoms that go down his legs. 

A March 2020 medical record notes that the Veteran reported chronic pain in the lower back and legs with associated numbness and tingling. 

An April 2020 medical record notes that the Veteran reported that his whole lower back was swollen, mainly on the right side. He tried numerous methods to try and ease the pain, but nothing helped. He described the pain as tight and burning with a tingly sensation down the legs that feels like its burning. He reported that it hurt when he was sitting or lying down. The pain had been ongoing for a week, but his back had since become swollen. 

The Veteran was afforded a VA examination for his thoracolumbar spine in September 2020. The examination notes diagnoses of spinal fusion, thoracolumbar strain and scoliosis, and bilateral lower extremity radiculopathy. The examiner indicated that overuse and strain of the lumbar can lead to the irritation and inflammation of nerves then in turn causing radicular symptoms, and his spinal fusion was due to overuse of strain. The Veteran reported that he currently experienced chronic low back pain; he would lose sensation in his legs and his legs give out. He reported that the pain shoots down both legs with numbness and tingling into his feet and toes. He reported needing to use a cane for ambulation and balance. He indicated that his lumbar spine disability was aggravated by bending, prolonged standing, walking, climbing stairs, and sitting longer than 15 minutes. The examination notes that the Veteran's treatment included a spinal fusion in 2019. The Veteran endorsed experiencing flareups, described as tightness and swelling in his back throughout the day. The Veteran also reported functional loss or functional impairment described as limitation in bending, indicating that he had difficulty putting on shoes, socks and pants and required help from his wife; prolonged sitting; standing; and climbing stairs. 

Upon range of motion testing, the Veteran's forward flexion was to 35 degrees, extension was to 15 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 15 degrees, and left lateral rotation was to 15 degrees. Pain on examination caused functional impairment. There was moderate tenderness or pain on palpation to the mid-lower back. There was evidence of pain on weightbearing. There was no additional functional loss after three repetitions. Pain, weakness, and fatigability significantly limited functional ability with repeated use over a period of time and with flare-ups; however, it did not result in any additional limitation in range of motion, as the examiner noted the same range of motion measurements as above. The Veteran did not have guarding or spasms. Muscle strength was normal and there was no muscle atrophy. The examination notes that the Veteran had moderate constant pain, moderate paresthesias, and moderate numbness in the bilateral lower extremities. The examiner indicated that the Veteran had bilateral lower extremity radiculopathy, moderate in severity, affecting the sciatic nerve. The Veteran did not have ankylosis or any other neurologic abnormalities. He did not have IVDS. The Veteran used a brace and a cane constantly for ambulation. The examination notes that the Veteran had two scars: one linear scar located on the superior to mid-low back, measuring 2 centimeters by 0.5 centimeter; and one linear scar on the mid-low back measuring 1 centimeter by 0.2 centimeter. Neither was painful or unstable. The Veteran's thoracolumbar spine disorder limited his ability to perform prolonged sitting, standing, walking, lifting, and bending. There as objective evidence of pain when the back was used in non-weightbearing; passive range of motion measurements could not be performed or were medically inappropriate. 

Lumbar Spine Disorder

After a review of the evidence, for the period prior to September 15, 2020, notwithstanding the period from February 20, 2019 to March 31, 2019 during which time a temporary total rating was in effect for convalescence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's thoracolumbar spine disorder. The only records during this period with any range of motion measurements indicate that the Veteran had normal range of motion in the thoracolumbar spine, and lumbar spine forward flexion to 100 degrees, extension to 10 degrees, and side-bending and rotation was reduced by 10 percent. Thus, the evidence does not more closely approximate forward flexion greater than 30 degrees but not greater than 60 degrees for a 20 percent rating, or 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine for a 40 percent rating. Additionally, there is no evidence of record indicating that the Veteran's combined range of motion of the thoracolumbar spine was not greater than 120 degrees at any time during this period. 

The Board acknowledges that the evidence reflects that the Veteran had "possible" ankylosing spondylitis during this period. However, later records indicate that there was no definitive evidence of this, and there is no evidence of record indicating that the Veteran's thoracolumbar spine, or entire spine, is fixed in flexion or extension. Indeed, as noted above, the Veteran was still able to forward flex his lumbar spine to 100 degrees, extend to 10 degrees, and his side-bending and rotation was still 90 percent normal. Thus, by definition, he did not have the required ankylosis, favorable or unfavorable to warrant a higher rating. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Thus, the Board finds that the criteria for a higher evaluation are not met due to ankylosis. 38 C.F.R. § 4.71a, DC 5237.

In making these findings, the Board has considered exacerbation of his back symptoms in February 2019, just prior to his back surgery, which resulted in back spasms and rendered him unable to walk or get out of bed. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, while the Board recognizes that that the Veteran's symptoms clearly worsened during this period, the Board finds that this period of exacerbation, lasting approximately one week prior to his lumbar spine surgery, does not require a separate staged rating when considering the duration of the symptoms in question. In this regard, even if the Veteran's lumbar spine symptoms more nearly approximated a higher rating during this one-week period, assigning an increased rating for a limited period such as this would violate the rule regarding stabilization of ratings. See 38 C.F.R. § 3.344. Accordingly, the Board finds that the Veteran's disability picture is contemplated by the Rating Schedule and adequately reflected in his currently assigned rating during the period prior to September 15, 2020. 

Furthermore, the criteria for IVDS indicates that a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Thus, even if this occurrence was considered an incapacitating episode, it lasted only one week and there is no evidence of any other similar episode within 12 months. Nevertheless, the Veteran is already rated separately for bilateral lower extremity radiculopathy and rating him under the code for IVDS would require the cessation of those radiculopathy rating. (This is so because the notes pertaining to the general rating criteria are separate from the notes pertaining to IVDS; the note allowing for separate ratings for neurologic conditions is found only in the section for the general rating criteria, and the regulations are clear that a back disorder may only be rated under the general rating criteria or the IVDS criteria.) In viewing the rating assigned under the general rating schedule for evaluating the back, in conjunction with the separate ratings for the bilateral leg neurologic condition, it is clear that the IVDS rating code would not result in an overall higher rating for the Veteran. Therefore, a rating based on incapacitating episodes is not warranted, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Thus, the Board finds that a rating in excess of 10 percent is not warranted at any time during the period prior to September 15, 2020 due to limitation of motion of the lumbar spine or incapacitating episodes under the criteria for rating IVDS. See 38 C.F.R. § 4.71a, DC 5237, 5243.

The Board has considered the Veteran's reported impairment of function, specifically his reported low back pain, and has considered additional limitations of motion due to pain. Nevertheless, even considering additional limitation of motion or function of the thoracolumbar spine due to pain or other symptoms such as less movement or stiffness (see 38 C.F.R. §§ 4.40, 4.45, 4.59), the Board does not find that the evidence shows that the lumbar spine disability more nearly approximates the criteria for a higher rating at any time during the period prior to September 15, 2020. To the extent that the Veteran has reported experiencing functional impairment, the Board finds that this impairment is contemplated by the current rating assigned. As such, a higher rating based on pain and functional loss is not warranted. In this regard, the medical evidence reflects that, even with pain with motion, the Veteran still had forward flexion greater than 85 degrees and a combined range of motion greater than 120 degrees. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran's current lumbar spine disability. Diagnostic Code 5003 for arthritis provides for a compensable rating only if one is not available under the general formula. As the Veteran is currently rated as compensable under Diagnostic Code 5237, it is not applicable to this case. Additionally, the Veteran has not been diagnosed with any additional neurological impairment due to his lumbar spine disability other than bilateral lower extremity radiculopathy, which will be addressed below; thus, a separate rating for neurological impairment is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned.

Therefore, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's thoracolumbar spine disorder for the period prior to September 15, 2020, notwithstanding the period from February 20, 2019 to March 31, 2019. 

Turning to the period from September 15, 2020, the Board finds that a rating in excess of 20 percent is not warranted. As indicated above, both before and after the February 7, 2021 rating criteria amendments, a higher 40 percent rating is assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The record does not indicate the Veteran has or has had ankylosis or forward flexion limited to 30 degrees or less at any time during the period from September 15, 2020. See 38 C.F.R. § 4.71(a). In this regard, the Board notes that the September 2020 VA examination notes that the Veteran's forward flexion was limited to no more than 35 degrees, and he did not have ankylosis.

The Board has considered whether a disability rating higher than 20 percent is warranted for this period of appeal based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. However, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The September 2020 VA examiner indicated that after repetitive use and during flareups, the Veteran's range of motion remained unchanged. Thus, any additional limitation due to pain cannot be established to more nearly approximate a finding of forward flexion of the thoracolumbar spine limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32; see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

The Board acknowledges that the Veteran experiences pain, which impacts his ability to perform activities of daily living. However, even when considering his pain, the Veteran's forward flexion of the thoracolumbar spine was to, at worst, 35 degrees, not limited to 30 degrees or less as required for a higher 40 percent rating. While the Board recognizes that the Veteran complained of low back pain with flare-ups, impacting his ability to perform activities of daily living, there is no indication that the Veteran's thoracolumbar spine disability was so disabling as to approximate the level of impairment required for assignment of a higher rating under the limitation of motion criteria at any time during the period on appeal. See 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 32; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

The provisions of sections 4.40 and 4.45 require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). Here, as indicated above, the evidence of record reflects forward flexion in excess of 30 degrees, including after repetitive use testing and during flare-ups, and to the extent that the Veteran experiences pain on movement, weakness, and fatiguability, the available medical treatment records do not describe this impairment in terms of range of motion which would warrant an increased evaluation and the VA examiner found that there was no additional functional impairment in this regard. 

The Board has also considered alternative diagnostic codes, and there is no alternative diagnostic code by which to assign a higher disability rating. The Veteran has not been diagnosed with any additional neurological impairment, other than bilateral lower extremity radiculopathy, due to his lumbar spine disability; thus, a separate rating for neurological impairment of the lower extremities is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). Additionally, there is no medical evidence, nor does the Veteran contend, that he had IVDS or otherwise had been prescribed bedrest for incapacitating episodes related to his lumbar spine disability at any time from September 15, 2020. As such, a higher rating under the provisions for IVDS is not warranted. 38 C.F.R. § 4.71(a), DC 5243.

The Board has also considered whether the Veteran should receive an additional separate rating for the residual scar associated with the surgical procedure for his thoracolumbar spine. However, the evidence of record does not establish that the Veteran would be entitled to a separate compensable rating for unstable or painful scars. See 38 C.F.R. § 4.118, DCs 7800-7805. In this regard, the Board notes that the September 2020 VA examination indicates that he had one linear scar located on the superior to mid-low back, measuring 2 centimeters by 0.5 centimeter, and one linear scar on the mid-low back measuring 1 centimeter by 0.2 centimeter; neither was painful or unstable. The medical evidence is otherwise silent for any complaints related to the Veteran's residual scars. Thus, the Board finds that a separate rating for residual scarring is not warranted.

Based on the foregoing, the Board finds that the preponderance of evidence is against a rating higher than 20 percent for the Veteran's lumbar spine disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Bilateral Lower Extremity Radiculopathy

After a careful review of the record, the Board finds that a rating in excess of 20 percent is not warranted for either the Veteran's service-connected radiculopathy of the lower right extremity or lower left extremity at any time during the period on appeal. Throughout the period on appeal, the evidence reflects that the Veteran has consistently reported symptoms of pain, numbness, and tingling in his bilateral lower extremities, with associated feelings of weakness. The September 2020 VA examination additionally considered these symptoms, including the Veteran's use of assistive devices for ambulation, and found that the Veteran had moderate incomplete paralysis affecting the sciatic nerve of the bilateral lower extremities, which is consistent with his currently assigned 20 percent disability rating for each lower extremity. A rating higher than 20 percent is not warranted at any time during the period on appeal as the evidence does not reflect that he experienced moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. 

To the extent that the Veteran contends that a rating in excess of 20 percent is warranted for his bilateral lower extremity radiculopathy, the Board notes that while the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service-connected radiculopathy of the lower right and left extremity are no more than moderate in severity, even when considering the Veteran's reported symptoms of weakness/giving out. No medical professional has provided any opinion that the Veteran's symptoms are best characterized as a higher level of impairment or incomplete paralysis. Thus, to the extent that the Veteran contends that his symptoms warrant higher disability ratings, the Board finds that his assertion is outweighed by the medical evidence of record. As such, a rating in excess of 20 percent for the Veteran's bilateral lower extremity radiculopathy is not warranted. 

Accordingly, the Board finds that a rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy is not warranted at any time during the period on appeal.  

Lipoma 

The Veteran is currently in receipt of a noncompensable evaluation for his lipoma on the abdomen pursuant to Diagnostic Code 7819. He contends that he is entitled to a higher disability rating. 

DC 7819 directs VA to rate "benign skin neoplasms" as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or impairment of function. 

At the outset, the Board notes that the Veteran is already in receipt of a 10 percent evaluation for his painful scar on the posterior trunk associated with his lipoma removal pursuant to DC 7804. Although the issue of an increased evaluation for this scar had initially been on appeal, as noted in the Board's January 2020 decision, the Veteran withdrew the claim for an increased rating for the residuals scar of the posterior side of trunk. Thus, the Board will not be addressing whether a higher rating is available for his posterior trunk scar associated with his lipoma removal. 

An October 2012 medical treatment record reflects that the Veteran had a history of lipoma excision in 2010 on the right flank area. Over the last year, he had a slowly growing, soft, subcutaneous, mildly tender mass near the same spot. He reported that he noticed it about a year ago, and it had grown steadily since and bothered him from time to time. He indicated that he wanted to have it removed.

The record reflects that the Veteran underwent an excision of right flank soft tissue mass on December 14, 2012. It was a same day procedure, and the findings note that he had a 1 centimeter by 1 centimeter lipoma. His status post-operative was satisfactory, and he did not have any complication. He left the hospital ambulatory and was instructed only to refrain from driving and making important decisions for 24 hours due to sedation or anesthesia that he was given during the appointment. 

A December 15, 2012 follow up record notes that the Veteran was doing well. He reported experiencing some burning on his side and he took pain medication as needed. 

At his July 2019 Board hearing, the Veteran testified that he continued to experience residual pain since his surgery. He indicated that his scar did not open, and he did not describe any functional impairment. 

A September 2020 VA examination notes a diagnosis of lipoma on abdomen status post removal. The Veteran reported that the "area still gets inflamed and red at times", depending on certain movements. The Veteran had not had any treatment with medications, nor had he had any other type of treatment, surgical or otherwise, in the past 12 months. The examination notes that the Veteran had a skin condition currently without any visible characteristic lesions at the time of the examination. He did, however, have scarring as a result of his right lateral side of abdomen lipoma removal, which measured 4 centimeters by 0.1 centimeter. 

After a review of the evidence, the Board finds that there is no basis to award a compensable evaluation for the Veteran's service-connected lipoma. In this regard, other than his painful residual scar, there is no evidence, nor does the Veteran contend, that he has any functional impairment due to his lipoma. 38 C.F.R. § 4.118, DC 7819. Assigning a higher rating for his lipoma based on the same symptoms that are already accounted for would be tantamount to impermissible pyramiding. 38 C.F.R. § 4.14.

The Board has considered whether any other Diagnostic Codes may be applicable to the Veteran's lipoma. Under the regulations in effect at the time the Veteran filed his claim, a 10 percent evaluation was warranted if the Veteran had 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; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. However, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a "General Rating Formula for the Skin" for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended DCs 7801, 7802, 7817, 7819, 7825, 7826, 7827, 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). 

Under the new General Rating Formula for the Skin, a 10 percent rating will be assigned if the disability meets 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. 38 C.F.R. § 4.118 (2018). 

The Board notes that there is no evidence, nor does the Veteran claim, that his lipoma was manifested by characteristic lesions involving at least 5 percent of the entire body or exposed areas, or involved intermittent systemic therapy for a total duration of less than 6 weeks over the past 12-month period as required for a 10 percent disability rating both before and after the amendments to the General Rating Formula For The Skin. Indeed, the evidence reflects that, at most, the Veteran had a 1 centimeter by 1 centimeter lipoma on his right flank, which is not at least 5 percent of the body, nor an exposed area, and he did not have any intermittent systemic therapy for a total duration of less than 6 weeks over the past 12-month period. See 38 C.F.R. § 4.118, DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Thus, an additional or higher rating is not available under the General Rating Formula for the Skin criteria either before or after the August 13, 2018 amendment. 

Based on the foregoing, the Board finds that an initial compensable evaluation is not warranted for the Veteran's lipoma. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

SERVICE CONNECTION

Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Bilateral Hearing Loss

For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993).

The Veteran claims that he has hearing loss that was caused by his military service because he was exposed to acoustic trauma and excessive noise while performing his duties.

After a review of the record, however, the Board finds that the Veteran does not have a current bilateral hearing loss disability for VA purposes and has not had one at any time during the period on appeal. 

In this regard, the Board notes that the Veteran was afforded a pre-discharge VA examination in March 2011 for his hearing loss. The Veteran reported that he experienced a decrease in his hearing for the past few years, and he had high noise exposure as a machine gunner. He described his symptoms as difficulty understanding speech when there is background noise. The examination further notes that the Veteran was infantry in service, fired weapons with both hands, and used hearing protection; he did not require a hearing conservation program, and he denied any exposure to loud noises outside of his military service. The audiological examination, shows pure tone thresholds, in decibels, were as follows:

	HERTZ

	500	1000	2000	3000	4000

RIGHT 	10	10	10	5	15

LEFT	10	10	5	10	10

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The examiner indicated that current pure tone thresholds and speech recognition scores in the Veteran's ears do not meet the criteria for disability under VA regulations.

Post-service medical treatment records are silent for any treatment or diagnosis related to hearing loss. 

The Veteran was afforded another VA examination in May 2021. The Veteran reported that he experienced hearing loss since 2010. The examination notes that the Veteran indicated that he had to keep asking people to repeat themselves; he had trouble hearing people who are speaking low and trouble hearing on the phone (regular and cell); he also had to turn up the volume on the television. The audiological examination, shows pure tone thresholds, in decibels, were as follows:

	HERTZ

	500	1000	2000	3000	4000

RIGHT 	10	10	10	5	15

LEFT	10	10	5	0	10

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner indicated that the Veteran had normal hearing bilaterally.

Throughout the period on appeal, the Veteran has not met the auditory threshold of 40 decibels in either ear at any frequency level or the auditory threshold for at least three frequencies at 26 decibels or greater; nor does the Appellant have speech recognition scores less than 94 percent. Thus, although the VA examiner indicated the Veteran has hearing loss, he has not met the regulatory definition of impaired hearing for VA purposes pursuant to 38 C.F.R. § 3.385 at any time during the period on appeal.

The Board has also considered the Veteran's reports that he experienced difficulty hearing; however, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). The record contains no audiological results that support a diagnosis of hearing loss for VA purposes for either ear. See 38 C.F.R. § 3.385.

To the extent that the Veteran believes that he experiences symptoms of difficulty hearing, the Veteran is competent to testify as to readily observable symptoms such as diminished hearing. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences rise to the level of a "disability" for VA purposes, which requires that hearing loss reaches a certain threshold before it is considered disabling. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a bilateral hearing loss disability. Therefore, the Board finds that the criteria for service connection for bilateral ear hearing loss have not been met.

In the absence of a current disability, compensation may not be awarded. Because the Veteran does not have hearing loss for VA purposes, the Board need not conduct any further analysis regarding in-service occurrence or a nexus, and the Veteran's appeal on this issue must be denied. See Romanowsky, 26 Vet. App. at 293; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where no disability exists, no further analysis is required); Gilbert v. Derwinski, 1 Vet. App. 53, 49 (1990); 38 C.F.R.§§ 3.102, 3.303(a), 3.307(a)(3), 3.309(a), 3.385.

In light of the foregoing, the preponderance of probative evidence of record is against the Veteran's claim for entitlement to service connection for bilateral hearing loss. Because the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for bilateral hearing loss is therefore denied.

REASONS FOR REMAND

Right Shoulder, Left Elbow, and Right Hand

The Veteran contends that he is entitled to service connection for a right shoulder disability, left elbow disability, and right hand disability. Specifically, the Veteran contends that following his right elbow injury in service, he continued to perform his military duties, which further injured his right arm, including his right shoulder, and impacted his left elbow. He also indicates that he has undergone numerous surgeries on his right upper extremity which have resulted in additional right hand problems.  

STRs reflect that the Veteran fell on his right upper extremity while running in 2008. STRs reflect complaints and treatment related to the Veteran's right arm, including his right hand and right elbow. With regard to his right hand, he sought treatment for right hand weakness and numbness during service. Specifically, STRs reveal that, following his in-service right elbow bursitis surgical repair, in September 2009, the Veteran reported experiencing numbness and tingling in his right hand. He reported subjective weakness in the right hand and examination revealed reduced grip strength in the right hand compared to the left hand. He received a diagnosis of cubital tunnel syndrome affecting the ulnar nerve one month later. Subsequent 2009 STRs continue to note symptoms of right hand weakness associated with his cubital tunnel syndrome affecting the ulnar nerve. A March 2010 STR notes that the Veteran had reduced strength but full range of motion in his right hand.

A March 2011 pre-discharge examination notes that the Veteran reported injuring his shoulder when moving items around his room in July 2009. He indicated that his right shoulder pops and he experienced shooting pain. He also noted right arm pain due to nerve damage. He endorsed symptoms of weakness, giving way, lack of endurance, subluxation, and pain. Upon examination, the right shoulder showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis. His right shoulder range of motion was within normal limits. X-ray findings revealed findings within normal limits. The x-ray also revealed the presence of an insignificant congenital finding. The examiner opined that the Veteran did not have a right shoulder disability because there was no pathology to render a diagnosis.

Regarding the left elbow, at his March 2011 pre-discharge VA examination, the Veteran reported that, for one year, he experienced numbness and pain. He was unable to bend for long because his arm fell asleep. He denied receiving any treatment. Physical examination of the left elbow revealed range of motion within normal limits; he did not have edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis. A left elbow x-ray showed findings within normal limits. The examiner opined that the Veteran did not have a left elbow disability because there was no pathology to render a diagnosis.

During his March 2011 pre-discharge examination for his right hand, the Veteran reported the onset of his symptoms as August 2010, describing a "small moving piece in the knuckle". The Veteran indicated that he did not have a diagnosis or any treatment, but he experienced pain in the knuckle. He denied experiencing any decreased strength, dexterity, locking, stiffness, or swelling. However, he described flare-ups in which he experienced limitation of motion, limiting his ability to flex his knuckle. The examination notes that the Veteran is right hand dominant. Examination revealed range of motion within normal limits, no decrease in muscle strength or dexterity. A right hand x-ray showed findings within normal limits. The examiner opined that the Veteran did not have a right hand disability because there was no pathology to render a diagnosis. 

In its January 2020 remand, the Board requested medical opinions addressing whether the Veteran had current disabilities of the right shoulder, left elbow, and right hand, and if so, the examiner was asked to address the etiology of these disorders, specifically considering the Veteran's reported symptoms noted in the March 2011 pre-discharge examination. 

Pursuant to the Board's January 2020 remand, the Veteran was afforded these VA examinations in September 2020. However, upon review of these examinations, it is unclear whether the March 2011 pe-discharge examination was considered. Specifically, the examinations note the Veteran's period of service and note several pieces of evidence, including his enlistment examination and several post-service treatment records; however, the March 2011 examination was not referenced, nor were any of the specific symptoms reported at that time. Thus, the Board finds that the September 2020 VA examinations addressing the Veteran's right shoulder, left elbow, and right hand do not comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, an addendum opinion is required to adequately decide the merits of the claim.

In addition, regarding the Veteran's right hand disorder, the Board notes that the September 2020 examiner indicated that reports have shown status post ulnar nerve transposition has side effects related to hand weakness and numbness. Notably, the Veteran is service connected for right elbow bursitis and status post ulnar nerve transposition. However, no secondary service connection opinion was provided on this issue. Therefore, upon remand, the Board finds that an opinion addressing whether the Veteran has a right hand disorder that is caused or aggravated by this service connected disability should be obtained. 

The matter is REMANDED for the following actions:

Obtain an addendum opinion from an examiner of appropriate expertise to determine the nature and etiology of any currently present right shoulder, left elbow, and right hand disability. If an examination is deemed necessary, such should be scheduled. The following questions should be addressed:

(a.) Whether it is at least as likely as not (50 percent or better probability) that any right shoulder, left elbow, and right hand disability had its initial onset in service or is otherwise etiologically related to the Veteran's active service.

In making this determination, the examiner must specifically consider the March 2011 pre-discharge examination.

(b.) For each identified right hand disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any right hand disability was caused by a service-connected disability, to include the Veteran's service-connected right elbow bursitis and status post ulnar nerve transposition.

(c.) For each identified right hand disability, the examiner should also opine as to whether any currently diagnosed right hand disability at least as likely as not proximately aggravated (worsened beyond its natural progression) service-connected disability, to include the Veteran's service-connected right elbow bursitis and status post ulnar nerve transposition. 

In making these determinations, the examiner must consider all of the relevant medical and lay evidence of record, including the September 2020 VA examiner's finding that status post ulnar nerve transposition has side effects related to hand weakness and numbness.

Note: Aggravation of a disability by a service-connected disability must be considered independently of direct causation and must provide adequate reasoning and conclusions on both points.

(Continued on the next page)

 

If aggravation is found, identify the baseline level of disability prior to any such aggravation, to the extent possible, based on the available evidence.

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Hite, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.