Citation Nr: A21018307
Decision Date: 11/16/21	Archive Date: 11/16/21

DOCKET NO. 190611-188235
DATE: November 16, 2021

ISSUE

Entitlement to a disability rating in excess of 10 percent for lateral bulging of the L4-5 disc on the left, L5-L1 disc on the left (claimed as low back pain). 

ORDER

Entitlement to a disability rating in excess of 10 percent for lateral bulging of the L4-5 disc on the left, L5-L1 disc on the left (claimed as low back pain) is denied.

FINDINGS OF FACT

For the period on appeal the Veteran's lateral bulging of the L4-5 disc on the left, L5-L1 disc on the left (claimed as low back pain) is manifested by a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; there was no objective evidence of muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. There was neither ankylosis nor any incapacitating episodes during the period on appeal, nor neurological manifestations not accounted for in other disabilities.

CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 10 percent for lateral bulging of the L4-5 disc on the left, L5-L1 disc on the left (claimed as low back pain) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from July 1992 to April 1995.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). 

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review.  The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019, as here.  See 38 C.F.R. § 3.2400(a)(1) (2021) (the modernized review system applies to all claims for which VA issues notice of an initial decision on or after the effective date of the modernized review system). This decision has been written consistent with the new AMA framework. 

In June 2019, the Veteran filed a VA Form 10182, Notice of Disagreement (NOD) in the modernized system, and selected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the April 2019 rating decision. 38 C.F.R. § 20.301.  

The Board notes that evidence, specifically an October 2020 VA Back Conditions compensation and pension examination, was added to the claims file during a period of time when such new evidence would not be allowed to be considered. Therefore, the Board may not consider this evidence. 38C.F.R. §20.300. The Veteran, however, may file a Supplemental Claim at a future date and submit or identify this evidence. 38C.F.R. §3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran reported during the March 2019 VA examination that he was currently employed, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed.

Increased Schedular Rating 

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). 

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 

Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 

The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). 

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 

The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Lumbar Spine Disability Legal Standards 

The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237 for lumbosacral strain. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. 

According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. 

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

A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. 

A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. 

In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2020). 

The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: 

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. 

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. 

The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS because the former results in a higher rating. 

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 

VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Diagnostic Code 5242 is now titled "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." The title of Diagnostic Code 5243 is now "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Id. No other changes in 38 C.F.R. § 4.71a are applicable for this particular appeal.

Entitlement to a disability rating in excess of 10 percent for lateral bulging of the L4-5 disc on the left, L5-L1 disc on the left (claimed as low back pain). 

The Veteran seeks a higher evaluation for his service-connected lumbar spine disability. The Veteran's lumbosacral strain, originally claimed as back pain, was granted service connection with a 10 percent rating effective from July 11, 2018, the day that VA received his notice of intent to file. The Veteran has expressed disagreement with this rating, arguing that his back disability is more severely disabling than contemplated by the current rating. 

Initially, the Board notes that in an April 2021 rating decision the Veteran was granted service connection for radiculopathy of the lower left extremity, related to service-connected lumbar back with a current rating of 10 percent for the entire period on appeal. The Veteran has not appealed his rating for his lower extremity radiculopathy, and as such, it will not be discussed further. 

Turning to the evidence of record, in February 2019 the Veteran submitted a statement in Support of his claim describing his back pain. He reported that he was experiencing a sore back, leg trouble and a lot of pain. The Veteran reported that he had been diagnosed with degenerative bone disease. He stated that he currently worked as a builder and at times after a long day, he would have bad back pain and pain in his left leg. He reported having issues with being able to use the bathroom, sleep or work. He also reported pain with reaching above his head, lifting heavy objects, bending over and sitting too long. 

The Veteran was afforded a VA examination in March 2019 and an examination addendum was completed in April 2019. The examiner noted a diagnosis of lateral bulging of the L4-5 disc on the left, L5-1 disc on the left. The Veteran complained of progressive back pain resulting in leg cramps and pain so bad that he couldn't sleep at night. He reported that his symptoms were so bad that at times he could not have bowel movements. The Veteran reported that he would take ibuprofen for pain but did not report any other treatments, medications or surgeries. As far as functional loss, the Veteran reported that he could not lay block or pick up a five-gallon bucket of paint. He also reported that it was hard for him to run equipment when he was jolted down and that the pain was worse side to side more than up and down. No flareups were reported. Range of motion in flexion was to 90 degrees, in extension to 25 degrees each, left and right lateral flexion to 20 degrees each, and left and right lateral rotation to 30 degrees each. Functional loss was noted as limiting the Veteran's ability to bend down or to the side to pick anything up. Pain was noted on examination. There was no objective evidence of localized tenderness or pain on palpation. Range of motion was measured after three repetitions and no change in measurements were found. The Veteran was not examined immediately after repetitive use over time but reported that after repeated use over time he experienced pain and weakness. The examiner noted that the examination was medically consistent with the Veteran's statement's describing functional loss. The examiner did not estimate any change in measurements of ROM after repeated use over time as well as during flare ups. No guarding or muscle spasm was noted. Muscle strength was 5 on a scale of 5. No muscle atrophy, ankylosis and no other neurological abnormalities were noted beyond the already service-connected left lower extremity radiculopathy. No IVDS or arthritis was noted. 

The Board recognizes a June 2019 NOD submitted by the Veteran's representative, which was added to the claims file in July 2019. In that NOD, the Veteran's representative has argued that the March 2019 VA examination was inadequate because the examiner did not examine the Veteran's back immediately after repetitive use, but instead opined that the examination was consistent with the Veteran's description of functional loss after repetitive use over time. However, the Board notes that the March 2019 examiner noted the Veteran's reports of pain and weakness which attributed to functional loss after repetitive use over time, and opined that the Veteran would not have any additional loss of ROM after repeated use over time. VA guidelines do not require direct observation of functional impairment after repetitive use to offer such an opinion. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). When such observations cannot be made VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. Id. In the present case, as the VA examiner considered the evidence of record, including the Veteran's lay statements when rendering such an opinion, the Board finds that the March 2019 examination is adequate for adjudication purposes.

In consideration of the above, for the entire period on appeal, the Board finds that the Veteran's symptoms most closely approximate the criteria for the 10 percent disability level. An evaluation of 10 percent may be granted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. The Board notes an evaluation of 10 percent for this period, but no higher, is based upon the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, recorded during the March 2019 VA examination.  

 A higher rating of 20 percent is not warranted because such symptomatology has not been shown for the relevant time period which demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees. Nor does the evidence show that the Veteran suffers from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence of record showed a normal gait and there have been no incapacitating episodes noted. Therefore, a higher, 20 percent disability rating for the relevant period is not warranted. 

When assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, the Board notes it has considered the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's statements of flare-ups and limitations after repeated use over time were recorded as well as their impact on the Veteran's functional impact of the lumbar back disability. 

In reaching the above conclusion, the Board has not overlooked the Veteran's statements with regard to the severity of his service-connected back disability. In this regard, the Veteran was competent to report on factual matters of which he had firsthand knowledge, e.g., limited ability to engage in prolonged activity such as sitting, lifting, and bending. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements and during his VA examination.  

However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has afforded greater probative weight to objective medical findings and opinions provided by the Veteran's VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent for the thoracolumbar back during the period on appeal. See 38C.F.R. §4.71(a), Diagnostic Code 5243; see also 38U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Board concludes that the preponderance of the evidence is against the claim for an increased disability rating for the Veteran's service-connected lumbar strain disability, the benefit of the doubt doctrine is not for application, and an increased rating is not warranted. 38U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's lumbar back disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted as the Veteran has had a stable level of symptomatology throughout the appeal period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505.

(Continued on next page.)

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Nettey, 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.