Citation Nr: A21018570
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 211018-192157
DATE: November 19, 2021

ORDER

Entitlement to a rating in excess of 40 percent for cervical disc disease with arthritis is denied.

Entitlement to a rating in excess of 50 percent for status post total right hip arthroplasty is denied.

Entitlement to a rating in excess of 10 percent for left thumb laceration, painful motion is denied.

Entitlement to a rating in excess of 20 percent for painful right hip and left thumb scars is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a rating in excess of 20 percent for left thumb laceration with neuropathy is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a compensable rating for hepatitis C is denied.

Entitlement to a compensable rating for scar, residual of cervical spine surgery is denied.

Entitlement to a compensable rating for eczema is denied.

Entitlement to a compensable rating for shortening of right lower extremity is denied.

REMANDED

Entitlement to a rating in excess of 30 percent for chronic right foot condition with corns and callouses is remanded.

Entitlement to a rating in excess of 10 percent for status post right hip donor harvest is remanded.

FINDINGS OF FACT

1. The Veteran's cervical disc disease with arthritis is manifested by cervical forward flexion, including during flare-ups, at no less than to 15 degrees; unfavorable ankylosis of the entire spine (or functional equivalent of ankylosis) is not shown.

2. Status post total right hip arthroplasty is manifested by moderately severe residuals of weakness, pain, or limitation of motion; residuals are not shown to be markedly severe and the need for crutches has not been shown.

3. The Veteran's left thumb laceration is manifested by painful motion and decreased grip strength, but not by a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.

4. The Veteran's right hip scar and left thumb scar are painful, stable, superficial, do not measure at least 6 square inches (39 sq. cm.), and have not limited function.

5. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus and the Veteran has not advanced any theory as to why a higher rating is warranted on an extraschedular basis.

6. The Veteran's left thumb laceration with neuropathy has not been manifested by symptoms approximating severe incomplete paralysis.

7. Audiometric examinations correspond to no greater than a level II hearing loss for the right ear and no greater than a level II hearing loss for the left ear.

8. The Veteran's hepatitis C has not caused symptoms such as intermittent fatigue, malaise, and anorexia, or any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), required dietary restriction or continuous medication, weight loss, hepatomegaly or near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).

9. The Veteran's neck scar has not been manifested by any of the 8 characteristics of disfigurement required for a compensable rating; and the scar is not painful or unstable.

10. The Veteran's eczema affects less than five percent of his total body area and his exposed areas and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs.

11. The weight of competent and credible evidence is against finding that the discrepancy between the right and left leg is 1 14 to 2 inches (3.2 centimeters (cm) to 5.1 cm).

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent for cervical disc disease with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5237.

2. The criteria for an evaluation in excess of 50 percent for status post total right hip arthroplasty have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5054.

3. The criteria for a rating in excess of 10 percent for left thumb laceration, painful motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5228.

4. The criteria for a disability rating more than 20 percent for right hip scar and left thumb scar have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804.

5. There is no legal basis for a schedular rating in excess of 10 percent for the Veteran's tinnitus, and remand for referral for consideration on an extraschedular basis is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.303, 3.321, 4.87, Diagnostic Code 6260.

6. The criteria for a rating in excess of 20 percent for left thumb laceration with neuropathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8514.

7. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.85, 4.86 Diagnostic Code 6100.

8. The criteria for a compensable evaluation for hepatitis C are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354.

9. The criteria for a compensable evaluation for a neck scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800.

10. The criteria for a compensable rating for eczema are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806.

11. The criteria for entitlement to a compensable rating for a leg length discrepancy, right leg shorter than left have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71A, Diagnostic Code 5275.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from November 1965 to August 1967 including service in the Republic of Vietnam.

A rating decision was issued under the legacy system in September 2018 and the Veteran submitted a timely notice of disagreement (NOD) in December 2018. In April 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a timely VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR). In October 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the April 2020 SOC. In the October 2020 VA Form 10182, Decision Review Request: Board Appeal NOD, the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the April 2020 SOC.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155.  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

If there is a question as to which evaluation to apply to the Veteran's disability, 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.

In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45.

1. Entitlement to a rating in excess of 40 percent for cervical disc disease with arthritis

The Veteran contends that he is entitled to a higher rating for his neck disability. He is currently assigned a 40 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5010 is applicable to arthritis, and Diagnostic Code 5237 is applicable to cervical strain.

As a preliminary matter, during the pendency of this appeal, applicable rating criteria for the Schedule for Rating Disabilities of the Musculoskeletal System and Muscle Injuries were revised effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board must consider the claim in light of both the former and revised schedular criteria and to apply the criteria that is more favorable to the Veteran. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the Veteran's neck disability rating is unaffected by the amendment. 

Traumatic arthritis will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a 10 percent evaluation is assignable 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242), a 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate V.

At the outset, the Board notes that a schedular rating in excess of the currently assigned 40 percent disability ratings is not available under DC 5010.

April 2017 private treatment records reflect that the Veteran maintained a very active lifestyle. He performed free weight exercises, went hiking several times a week, and maintained his property. He reported increased neck pain with immobility. During December 2017 and June 2018 private treatment, he reported exercising at least twice a week. 

The Veteran submitted a claim for entitlement to a total disability rating due to individual unemployability in part due to his neck disability in April 2018. 

In a July 2018 statement, the Veteran reported that he had chronic hip pain. He stated that he was able to drive but needed to turn his whole body when making turns.

In a July 2018 private consultation report, the Veteran reported difficulty moving his neck, chronic pain, and stiffness.

Upon VA examination in August 2018, the Veteran reported chronic pain, decreased loss of motion, and interference with sleep. He reported that he was limited to 10 pounds of overhead lifting and had pain while resting. He denied flare-ups. Range of motion testing revealed forward flexion to 30 degrees, extension to 30 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. Repetitive use testing did not result in any additional function loss. The examiner estimated that following repeated use, the Veteran's range of motion would be further limited to 15 degrees forward flexion, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. There was objective evidence of pain with passive motion but no evidence of pain with weight-bearing. The Veteran had full muscle strength and no radiculopathy. There was no ankylosis of the spine, and no other neurological abnormalities. The Veteran did not have IVDS.

October 2018 VA physical therapy records reflect that the Veteran was able to complete several neck exercises, stretches, and rotations.

VA treatment records reflect continued treatment and physical therapy for neck pain.

Upon review of the evidence of record, the Board finds that, a rating in excess of 40 percent is not warranted. The evidence does not demonstrate that the Veteran's neck disability was manifested by unfavorable ankylosis of the entire spine. The Board finds no evidence of ankylosis. The August 2018 VA examiner did not find ankylosis present on examination. The evidence of record also does not support a finding of a functional equivalent of ankylosis. The only limitations noted were turning head due to decreased cervical ROM.

The Board also notes that there is no probative evidence of IVDS, and the August 2018 VA examiner did not note incapacitating episodes in the past 12 months.

The Board acknowledges the contentions of the Veteran and his representative regarding pain and functional limitations. See DeLuca, supra. Nonetheless, the Board finds that such symptoms are contemplated by his current 40 percent rating for painful motion with limitation of motion and do not more nearly approximate the criteria for a higher rating. In fact, during the appeal period, the Veteran's cervical forward flexion, including during flare-ups, was at most limited to 15 degrees as contemplated by the 40 percent rating.

The Board has considered the use of staged ratings. However, the evidence does not show that the Veteran's neck disability more nearly approximated the criteria corresponding to a higher rating at any point during the appeal period. Thus, the application of a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

In sum, the Board finds that the preponderance of the evidence is against an assignment of a rating in excess of 40 percent for the Veteran's neck disability. Accordingly, the benefit-of-the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, the claim must be denied.

2. Entitlement to a rating in excess of 50 percent for status post total right hip arthroplasty

The Veteran contends that he is entitled to a higher rating for his hip replacement disability. He is currently assigned a 50 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5054. The 50 percent rating is in effect after a temporary total rating following the right hip replacement.

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.  

Prior to the regulatory change, Diagnostic Code 5054 (hip replacement) warranted a 100 percent evaluation for the one-year period following implantation of the prosthesis.  A 90 percent evaluation was warranted if following the implantation there is painful motion or weakness such as to require the use of crutches.  A 70 percent evaluation was warranted if there is markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis.  Chronic residuals consisting of moderately severe weakness, pain or limited motion warranted a 50 percent rating.  A minimum 30 percent rating would be assigned following the implantation of the prosthesis.  

As of February 7, 2021, the Diagnostic Code was changed to limit the period of a 100 percent evaluation following implantation from one year to four months and to specify that the minimum 30 percent evaluation is for total joint replacement only, distinguish total replacement from resurfacing of the joint.  Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5054).  All other criteria remain the same.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.").  Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating.  38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

In this matter, Diagnostic Code 5054 is the only potentially applicable Diagnostic Code.  Copeland v. McDonald, 27 Vet. App. 333 (2015).  The changes to the Diagnostic Code, as shown, will not impact the Veteran's disability as they shorten the period of temporary total evaluation following joint replacement and specify that the minimum 30 percent evaluation is for total joint replacement only.  As such, there is sufficient medical evidence to proceed with adjudication and evaluation under the old or new criteria will not impact the outcome.

During December 2017 and June 2018 private treatment, he reported exercising at least twice a week.

The Veteran submitted a claim for entitlement to a total disability rating due to individual unemployability in part due to his hip disability in April 2018. 

In a July 2018 statement, the Veteran reported chronic hip pain which prevented him from sitting comfortably and made bending over and heavy lifting difficult.

During a July 2018 private consultation, the Veteran reported that he felt hip pain with walking. He stated that walking and sitting exacerbated the pain and made him "squirm" or get up and move. 

The Veteran attended a VA examination in August 2018. He reported that he treated his hip pain with ice, rest, and anti-inflammatory medication (NSAIDS). He denied flare-ups. The Veteran reported increased pain with use. Range of motion testing revealed right hip flexion to 70 degrees, extension, abduction, and adduction, each to 15 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Pain contributed to functional loss. There was no additional loss of motion following repetitive use. The examiner estimated that the Veteran's right hip range of motion would be limited to 35 degrees flexion, 10 degrees extension, abduction, and adduction, 25 degrees external rotation, and 15 degrees internal rotation following repeated use over time. The Veteran's left hip exhibited normal range of motion. The Veteran had full muscle strength in both hips. The Veteran used a heel lift on his right shoe. He did not use any other assistive devices. The examiner determined that the Veteran's right hip produced moderately severe residuals of weakness, pain or limitation of motion.

After a review of the medical and lay evidence, an evaluation in excess of 50 percent for the Veteran's left hip is not warranted.

While there is pain and limitation of motion in all directions, the evidence does not show it to be markedly severe.  Strength is 5/5 in all directions.  The Veteran is able to ambulate and does not use any assistive devices. Private treatment records reflect that the Veteran regularly exercises.  The VA examiner concluded that the Veteran's disability did not manifest as markedly severe residual weakness, pain, or limitation of motion.  While not dispositive, this certainly does not support an evaluation in excess of 50 percent. 

The Board finds that the Veteran's symptoms and overall impairment more nearly approximate the criteria for a 50 percent rating for the entire period on appeal.  There is no evidence of markedly severe residual weakness, pain, or limitation of motion.  Furthermore, there is no evidence that crutches are required for ambulation.  In reaching this finding the Board has considered the Veteran's lay assertions.  To the extent these assertions are consistent with a 70 percent evaluation, the Board finds the objective medical testing to be more probative in this instance.  

The weight of competent and credible evidence is against an evaluation in excess of 50 percent.  The claim must be denied.

3. Entitlement to a rating in excess of 10 percent for left thumb laceration, painful motion

The Veteran contends that he is entitled to a higher rating for his painful motion of left thumb disability. He is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5228 (thumb, limitation of motion).

Under Diagnostic Code 5228, for limitation of motion of the thumb, with a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, a 20 percent rating is warranted for either a major or minor extremity.  With a gap of one to two inches (2.5 to 5.1 cm), with the thumb pad attempting to oppose the fingers, a 10 percent rating is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5228. The criteria for Diagnostic Code 5228 were unchanged by the February 2021 amendments.

The Veteran was provided with a VA examination in August 2018.  The Veteran was diagnosed with left thumb laceration with neuropathy.  Pain was noted upon examination, but it did not result in functional loss.  No flare-ups were reported.  There was no gap between the thumb and the fingers. No ankylosis was found.  Functional effects included problems with griping and dropping objects, but grip muscle strength was noted as only mildly reduced (4 on a scale to 5).

The Board finds that the 10 percent disability rating for the left thumb painful motion is appropriate as there is no objective evidence of a gap of more than two inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers which is required for a higher 20 percent rating under Diagnostic Code 5228.  The Board in particular finds the August 2018 VA examination to be of great probative value. The examiner was very thorough in his examination and did not see any evidence of a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, as thorough examination was provided and did not indicate a gap of more than 5.1 cm.  There is no indication in the private or VA treatment records that there was a gap greater than 5.1 cm between the thumb pad and the fingers. As such, the record indicates that a higher disability rating is not warranted under Diagnostic Code 5228.  

Further, the Board has considered the Veteran's complaints of functional impairment.  See DeLuca, supra.  However, the Board places greater probative value on the objective clinical findings which are against a higher disability rating.  We have specifically considered the reports of functional loss.  However, the functional impairment, even if accepted as credible, does not provide a basis for an increased rating as the Veteran maintained a gap of less than 5.1 cm between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  

The Board further finds that the 10 percent rating adequately compensates the Veteran for any functional impairment attributable to his right thumb disability.  See 38 C.F.R. §§ 4.41, 4.10 (2019).  Accordingly, a 20 percent disability rating of the Veteran's residual of right thumb disability is not warranted. 

Similarly, a disability rating in excess of 10 percent is not warranted any other applicable diagnostic code.  As noted, the Veteran does not have ankylosis of the left thumb. Additionally, as detailed below, he holds a separate disability rating for his reported left thumb neuropathy. Therefore, a rating in excess of 10 percent under Diagnostic Code 5224 is not warranted.  

4. Entitlement to a rating in excess of 20 percent for right hip scar and left thumb scar

The Veteran contends that he is entitled to a higher rating for his two painful scar disabilities. He is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804.

Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation.  Three or four scars that are unstable or painful warrant a 20 percent evaluation. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) for that code defines an unstable scar as one where, for any reason, there is frequent loss of skin covering over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.  Revised regulations do not substantially change the criteria.

The Veteran attended a VA scars examination in August 2018. He reported that his hip and thumb scars were painful on palpation, and temperature and pressure sensitive. Neither scar was unstable or due to burns. The Veteran's left thumb scar was linear, measuring 2 centimeters. Hip right hip scar was also linear and measured 14 centimeters. 

VA treatment records do not reflect that the Veteran ever sought treatment or reported any painful scars. 

The medical evidence of record, to include the August 2018 VA examination report, indicates that the Veteran does not evidence five or more unstable or painful scars such that a higher 30 percent disability rating is warranted under Diagnostic Code 7804.  Moreover, there are no findings that the scars are unstable and that the total area of the scars are 39 square cm or greater.  

Accordingly, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's right hip and left thumb scars. 

5. Entitlement to a rating in excess of 10 percent for tinnitus

The Veteran contends that he is entitled to a higher rating for his tinnitus. He is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260. This is the maximum schedular evaluation assignable for that condition. The Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 

The Veteran attended a VA audiological examination in July 2018. He reported tinnitus but denied that it impacted the ordinary conditions of daily life or his ability to work.

The Board is uncertain as to whether the Veteran's claim for increased rating is based on any other symptoms, as he has not reported any additional symptoms as part of the current claim for increased rating.  

In light of the foregoing, the Board concludes that Diagnostic Code 6260 precludes separate 10 percent schedular ratings for bilateral tinnitus.  As such, the Veteran's claim for a compensable evaluation greater than 10 percent for his service-connected tinnitus must be denied.

As the disposition of this claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

6. Entitlement to a rating in excess of 20 percent for left thumb laceration with neuropathy

The Veteran contends that he is entitled to a higher rating for his left thumb neuropathy disability. He is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8514. Under Diagnostic Code 8514, a 20 percent rating is warranted for mild, incomplete paralysis of the major (dominant) side and the minor (non-dominant) side.  For moderate, incomplete paralysis, a 30 percent rating is warranted for the major side and a 20 percent rating is warranted for the minor side.  For severe, incomplete paralysis, a 50 percent rating is appropriate for the major side, and a 40 percent rating is warranted for the minor side.  Complete paralysis of the radial nerve, with drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity, is rated 70 percent on the major side and 60 percent on the minor side.  38 C.F.R. § 4.124a.  A Note to Diagnostic Code 8514 provides that lesions involving only "dissociation of extensor communis digitorum" and "paralysis below the extensor communis digitorum" will not exceed the moderate rating under Diagnostic Code 8514.  When lost or impaired function is wholly sensory, the rating should be at the mild degree, or at most, the moderate degree.

The Veteran attended a VA examination in August 2018. He stated that he was right hand dominant. He reported stiffness, pain and numbness of the left thumb. The examiner determined that the Veteran's left thumb neuropathic pain and numbness were moderate, and his paresthesias and/or dysesthesias was mild. There was no muscle atrophy. The examiner determined that the Veteran's left thumb neuropathy was limited to decreased grip strength, which could cause dropping of common items, like cups and utensils. 

After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left (minor) thumb disability is consistent with, or approximated, severe incomplete paralysis.

The Board acknowledges the Veteran's complaints of pain, numbness and decreased grip strength in his left hand.  While the Veteran is competent to report symptomatology which he experiences, the Board finds that the objective medical evidence of record does not support a finding of severe, incomplete paralysis.  Notably, the August 2018 VA examiner found that the Veteran's left thumb neuropathic pain, numbness, and mild paresthesias and/or dysesthesias resulted in mild incomplete paralysis.  The Board affords the opinion of the August 2018 VA examination the greatest probative value. Moreover, the functional limitations were determined to be decreased grip strength in a nondominant hand.  Therefore, in addition to considering the examiner's assessment of the level of disability, the Board finds that the loss of function is also best described as moderate but not severe.

In summary, at no point during the appeal period has the Veteran's left thumb disability met the criteria for a rating in excess of 20 percent under Diagnostic Code 8514.  

As a preponderance of the evidence weighs against these claims, the benefit-of-the-doubt rule is not for application.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

7. Entitlement to a compensable rating for bilateral hearing loss

The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss disability. He is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100.

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b).

The Veteran submitted a claim for entitlement to a total disability rating due to individual unemployability in part due to his hearing loss in April 2018. 

In a July 2018 statement, the Veteran reported that his hearing loss made employment difficult.

The Veteran attended a VA hearing loss examination in July 2018. He stated that his spouse complained that he watched television too loudly and that even though he used a higher volume he had difficulty with discrimination. He denied using hearing aids, because when he last used them eight years prior, they were too loud. The results of the audiological test are as follows, with pure tone thresholds recorded in decibels:

 	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	30	45	60	65	65

LEFT	25	35	65	80	85

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 100 percent in the right ear and 100 percent in the left ear. The average of the pure tones between 1000-4000 Hz was 59 in the right ear and 66 in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and II for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII.

A May 2018 private consultant reported that the Veteran had trouble hearing in group conversations and on the phone.

The Board has carefully considered the Veteran's contentions that his hearing loss is entitled to a compensable rating. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Thus, there is no medical evidence of record on which a higher rating could be assigned. As such, the Veteran's claim for an increased rating for his hearing loss disability is denied.

8. Entitlement to a compensable rating for hepatitis C

The Veteran contends that he is entitled to a higher rating for his hepatitis C disability. He is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354.

Under Diagnostic Code 7354, a 10 percent rating applies where there is intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating applies where there is daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent evaluation applies where there are symptoms such as daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating applies where there are symptoms such as daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating applies where there are symptoms such as near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).

Note 2 under Diagnostic Code 7354 provides that for purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See Note 2 following 38 C.F.R. § 4.114.

Compensable ratings of 10, 20, 40, and 60 percent all require: 1) fatigue, malaise, and anorexia, or 2) incapacitating episodes lasting a week or longer.

The Veteran attended a VA examination in August 2018. He stated that he had no symptoms or sequel and that his hepatitis C condition had gotten better. There was no indication of the disease and it was not further evidenced on blood test.

While the Veteran asserted disagreement with the currently assigned rating for hepatitis C, he has not indicated either in statements or with supporting evidence why a higher rating is warranted. The August 2018 VA examination reports provide the most comprehensive insight into the severity of the Veteran's hepatitis C. During the examinations, the Veteran reported no symptoms whatsoever. The examiner noted that medication was not needed to control the Veteran's hepatitis C and that the condition had not resulted in any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The examiner concluded that while the Veteran had been diagnosed with hepatitis C, he did not have any signs or symptoms attributable to chronic or infectious liver diseases.

Indeed, while treatment records show that the Veteran has had a history of hepatitis C, neither the records nor the Veteran indicate that the disorder has been symptomatic during the pendency of the appeal, let alone resulted in intermittent fatigue, malaise, and anorexia or incapacitating episodes warranting a higher rating. As the evidence indicates that the Veteran's hepatitis C has not resulted in intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), a compensable rating is not warranted. In addition, the Veteran has not alleged, and the record does not establish, required dietary restriction or continuous medication, weight loss, hepatomegaly or near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Therefore, a compensable rating is not warranted for any period during the appeal period.

The Board acknowledges the Veteran's statements that his hepatitis C is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for higher ratings than those assigned have been met. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment.

In this case, the preponderance of the evidence is against a compensable rating for the Veteran's hepatitis C and the claim must, accordingly, be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

9. Entitlement to a compensable rating for scar, residual of cervical spine surgery

The Veteran contends that he is entitled to a higher rating for his neck scar. He is currently assigned a noncompensable rating pursuant to under 38 C.F.R. § 4.118, Diagnostic Code 7800, for scars of the head, face, or neck.

Diagnostic Code 7800 provides that a scar with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. 

A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling.

 A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. 

A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling.

The 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118 are: 1) Scar is 5 or more inches (13 or more centimeters (cm)) in length, 2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part, 3) Surface contour of scar is elevated or depressed on palpation, 4) Scar is adherent to underlying tissue, 5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), 6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), 7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.), 8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

The Veteran attended a VA scars examination in August 2018. He denied any pain or instability in his neck scar and there was no elevation, depression, adherence to underlying tissue, or missing underlying tissue. His neck scar measured 2 centimeters by .2 centimeters.  There was no abnormal pigmentation or texture, and his neck scar did not cause gross distortion or assymetry of his facial features or visible or palpable tissue loss. The examiner determined that the Veteran's neck scar did not cause any limitation in function.

The Board has considered the Veteran's assertions regarding entitlement to a higher rating for his neck scar. However, such lay evidence in this case, even when accepted as accurate does not establish a level of disability contemplated by an increased compensable evaluation. As explained above, in order to meet the criteria for a compensable rating under Diagnostic Code 7800, the Veteran's scar must exhibit at least one characteristic of disfigurement of the head, face or neck. The Veteran's neck scar does not exhibit any of the following: 1) Scar is 5 or more inches (13 or more centimeters (cm)) in length, 2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part, 3) Surface contour of scar is elevated or depressed on palpation, 4) Scar is adherent to underlying tissue, 5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), 6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), 7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.), 8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 

There is no competent evidence of a scar that is 13 cm. in length, at least.6 cm. wide, contour that is elevated or depressed on palpation, adherence to underlying tissue, skin that is hypo or hyper-pigmented, abnormal skin texture, missing underlying soft tissue, or indurated or in flexible skin. The Veteran has reported his scar is not painful or unstable. The VA examination noted the Veteran's scar was 2 centimeters by .2 centimeters. Examination noted the scar was not painful, unstable, or with a frequent loss of covering of skin, no elevation, depression, adherence to or missing underlying tissue, with no abnormal pigmentation or texture and the scars were not due to burns. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss or a limitation of function or additional complications, signs, symptoms or physical findings. The Board finds the VA examination is entitled to significant probative weight and consistently notes one neck scar that is not disfiguring and caused no functional impact. The Veteran's neck scar does not meet any of the 8 characteristics of disfigurement required for a compensable rating. As such an increased 10 percent rating is not warranted under Diagnostic Code 7800.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased compensable rating for the Veteran's service-connected facial scars is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3.

10. Entitlement to a compensable rating for eczema

The Veteran contends that he is entitled to a higher rating for his eczema disability. He is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806.

Under the regulations in effect at the time the Veteran filed his claim in April 2018, Diagnostic Code 7806 provided a 0 percent rating where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period.  A 10 percent rating is warranted if 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 are affected, or; 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. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017).

Effective August 13, 2018, changes were made to the rating criteria for skin disabilities (38 C.F.R. § 4.118). See 83 Fed. Reg. 32,592 (July 13, 2018). The old regulation will be considered for periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

Under the revised criteria, the General Rating Formula for the Skin provides a 10 percent rating 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. A 30 percent rating will be assigned if the disability meets one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or 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 or more, but not constantly, over the past 12-month period. A 60 percent rating will be assigned if the disability meets one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas; or constant or near-constant 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 or more, but not constantly, over the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2019). For the Veteran's case, the results and pertinent criteria are essentially the same.

In Johnson v. Shulkin, 862 F. 3d 1351 (Fed. Cir. 2017), the Federal Circuit Court agreed with the Secretary's interpretation of Diagnostic Code 7806 finding that the term "systemic therapy" did not include topical therapy that affects only the area to which it is applied, and the use of topical corticosteroids did not automatically mean systemic therapy.

During June 2018 VA treatment the Veteran denied rashes, pruritus, or open sores.

The Veteran attended a VA examination in August 2018. He reported using topical corticosteroids for six weeks or more, but not constantly, over the last year. He denied any other treatment and had not had any debilitating or non-debilitating episodes. Upon examination, the examiner determined that the Veteran's eczema affected less than 5 percent of his total body and less than 5 percent occurred in an exposed area. The examiner determined that the Veteran's eczema did not cause any functional impact. 

During October 2018 VA treatment the Veteran denied rashes, pruritus, or open sores. 

June 2019 VA treatment records reflect that the Veteran denied any rashes. 

The Veteran has not provided any lay statements as to why he thinks he is entitled to a higher rating, to include any symptoms or treatments.

As the Veteran's eczema covers less than five percent of his body and exposed area, has required only topical treatment, and does not cause functional impairment, a compensable rating is not appropriate. As discussed above, topical treatment is not considered systemic therapy.

Based on the relevant medical and lay evidence of record, the Board finds that the criteria for a compensable rating for eczema have not been met.  See 38 C.F.R. § 4.118, Diagnostic Code 7806.

11. Entitlement to a compensable rating for shortening of right lower extremity

The Veteran contends that he is entitled to a higher rating for his right leg length disability. He is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5275.

Under Diagnostic Code 5275, shortening of the bones of the lower extremity that measure 1 14 to 2 inches (3.2 cm to 5.1 cm) warrants a 10 percent evaluation. Shortening of the bones of the lower extremity that measure 2 to 2 12 inches (5.1 cm to 6.4 cm) warrants a 20 percent evaluation. Shortening of the bones of the lower extremity that measure 2 12 to 3 inches (6.4 cm to 7.6 cm) warrants a 30 percent evaluation. Shortening of the bones of the lower extremity that measure 3 to 3 12 inches (7.6 cm to 8.9 cm) warrants a 40 percent evaluation. Shortening of the bones of the lower extremity that measure 3 12 to 4 inches (8.9 cm to 10.2 cm) warrants 50 percent evaluation. Shortening of the bones of the lower extremity that measure over 4 inches (10.2 cm) warrants a 60 percent evaluation. The Note associated with Diagnostic Code 5275 indicates that both lower extremities should be measured from the anterior superior spine of the ilium to the internal malleolus of the tibia. The Note also states that this Diagnostic Code should not be combined with other ratings for fracture or faulty union in the same extremity.

The Veteran submitted a claim for entitlement to a total disability rating due to individual unemployability in part due to his leg length discrepancy in April 2018. In a corresponding July 2018 statement, the Veteran reported that the difference in his leg length prevented him from maintaining his balance.

A VA examination in August 2018 indicates a right leg length of 87 centimeters and a left leg length of 90 centimeters, or a difference of 3 centimeters.  He reported that the discrepancy in his leg length caused corns and callouses on his right foot.

After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a compensable disability rating is not warranted for shortening of the right leg.

The Board finds that a compensable rating is not warranted under Diagnostic Code 5275 because the weight of the competent and probative evidence, as described above, is against a finding that the right leg was 3.2 centimeters to 5.1 centimeters shorter than the left leg at any point during the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5275.

All possibly applicable diagnostic codes have been considered but the Veteran could not receive higher and/or additional evaluations for shortening of the right leg based on the evidence.  See 38 C.F.R. § 4.71a.  Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate.  Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015).  Furthermore, the Veteran holds a separate rating for chronic right foot condition with corns and callouses associated with shortening of the right leg. 

Based on the relevant medical and lay evidence of record, the Board finds that the criteria for a compensable rating for shortening of right lower extremity have not been met.  See 38 C.F.R. § 4.118, Diagnostic Code 5275.

REASONS FOR REMAND

13. Entitlement to a rating in excess of 30 percent for chronic right foot condition with corns and callouses

The Veteran contends that he is entitled to a higher rating for his right foot disability. 

In his April 2018 claim for increased ratings, the Veteran reported that the corns and callouses on his right foot made walking painful. 

The Veteran attended a VA examination for his right foot in August 2018. He reported pain and interference with walking. He denied flare-ups. He reported pain with walking and standing for longer than five minutes. He reported using a heel lift in his right shoe. Following an examination and review of the claims file, the examiner determined that the Veteran's corn and callous right foot disability was mild.

June 2019 VA treatment records reflect that the Veteran was referred to a podiatrist outside of the VA system. It does not appear that there was an attempt to associate those records with the claims file. A remand is required to allow VA to obtain authorization and request these records.

14. Entitlement to a rating in excess of 10 percent for status post right hip donor harvest

The Veteran contends that he is entitled to a higher rating for his status post right hip donor disability. 

He is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 5299-8522. Hyphenated Diagnostic Codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last two digits will be "99" for all unlisted conditions.

Diagnostic Code 8522 pertains to the musculocutaneous nerve (superficial peroneal). 

The Veteran attended a VA examination for his peripheral nerve conditions in August 2018. It does not appear that the Veteran's musculocutaneous nerve or status post right hip donor harvest were examined. Therefore, a new examination is necessary to assess the severity of the Veteran's status post right hip donor harvest prior to adjudication. 

The matters are REMANDED for the following action:

1. Contact the Veteran, and, with his assistance, identify any outstanding podiatry records from private providers and associate them with the claims file.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post right hip donor harvest.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Fitzgerald, 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.