Citation Nr: 21074924 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-22 316A DATE: December 16, 2021 ORDER Entitlement to an initial rating higher than 10 percent for lumbosacral strain with degenerative disc disease (low back disability) prior to April 9, 2019, and a rating higher than 20 percent thereafter, is denied. REMANDED Entitlement to an initial compensable rating for folliculitis of the face is remanded. Entitlement to an initial rating higher than 30 percent for marked fibrosis, atrophy, and scarring of the scalp (scarring of the scalp) prior to April 9, 2019 and a rating higher than 50 percent thereafter, is remanded. Entitlement to service connection for a condition of the left foot and ankle is remanded. FINDINGS OF FACT 1. Prior to April 9, 2019, the Veteran's low back disability was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, intervertebral disc syndrome (IVDS) with incapacitating episodes. 2. Since April 9, 2019, the Veteran's low back disability was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-up without ankylosis, IVDS. CONCLUSION OF LAW The criteria for an increased rating for low back disability, rated as 10 percent disabling prior to April 9, 2019 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1982 to August 2002, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the appeal for additional evidentiary development. The Veteran withdrew his request for a videoconference hearing before the Board in correspondence received in August 2017. 1. Entitlement to an increased rating for low back disability, rated as 10 percent disabling prior to April 9, 2019, and 20 percent thereafter, is denied. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran's low back disability is currently evaluated as 10 percent disabling until April 9, 2019 and 20 percent thereafter, under Diagnostic Code 5237. VA regulations provide that spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine, 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, provides the following: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is evidence of 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. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is 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; or, there is evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, normal range of motion on forward flexion is zero to 90 degrees; backwards extension, zero to 30 degrees; left and right lateral flexion, zero to 30 degrees; and, left and right lateral rotation, zero to 30 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). The Veteran submitted a private examination report for his low back disability in May 2012. See May 2012 VA Examination. The Veteran reported that since injuring his back in service, he has experienced continually recurring painful episodes during physical strain or athletic activities. He also reported that there was no radiation of pain or neurological deficiency. The private examiner noted flexion as limited to 64 degrees. A May 2014 private treatment record documents the Veteran's report that he has been on Naproxen for over 5 years for back pain. He also reported that lately he had been having a stabbing pain in his lower back which gets better with no movement. See September 2014 Medical Treatment Record - Non-Government Facility. The Veteran was afforded an examination in April 2019. The Veteran explicitly denied that his back pain is subject to flare-ups. See May 2019 C&P Exam, at Question No. 2b; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, he endorsed pain with prolonged walking, sitting, standing, and running, which prevented bending at the lower back. Initial range of motion testing reflected forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. Pain was noted on exam but did not cause additional functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional functional loss or loss of range of motion. Examiner noted that pain significantly limited functional ability with repeated use over a period of time and estimated in range of motion with forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. The Veteran did not have guarding or muscle spasm of the low back. The Veteran's radicular pain symptoms included mild constant pain, paresthesias, and numbness, and moderate intermittent pain of both lower extremities. There was no evidence of ankylosis. The Veteran did not have any other neurologic abnormality or finding related to the low bac disability. He also did not have IVDS. The Board has fully and sympathetically considered all relevant evidence as to whether the Veteran is entitled to an initial rating in excess of 10 percent for his low back disability at any time prior to April 8, 2019. As noted above, the only medical evidence prior to April 9, 2019 in which some range of motion was provided was the May 2012 private examination in which the private examiner measured the Veteran's low back flexion to 64 degrees. Under DC 5237, the Veteran is entitled to a 10 percent rating if flexion is greater than 60 degrees but not greater than 85 degrees. The Veteran is not entitled to a higher 20 percent rating because the Veteran's forward flexion was not between 30 degrees to 60 degrees during this period. There was also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, a 10 percent rating but no higher was warranted at this time, and as there is no evidence of record suggesting entitlement to a rating in excess of 10 percent for a low back disability until April 9, 2019, the Board concludes that the Veteran is not entitled to such a rating in excess of 10 percent for a low back disability prior to April 9, 2019. The Board has also considered whether the Veteran is entitled to a rating in excess of 20 percent for his low back disability at any point after April 9, 2019. In this regard, the record fails to show that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. The April 2019 examiner noted that flexion was limited to 40 degrees. The Veteran reported that he did not experience flare-ups. There was no ankylosis or IVDS. Therefore, a rating in excess of 20 percent beginning from April 9, 2019 is not warranted. In reaching its conclusions, the Board acknowledges the Veteran's belief that his low back disability is more severe than as reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his low back disability. The Board has also considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). There is no evidence of record to suggest that the Veteran is entitled to a rating in excess of 10 percent for his low back disability any earlier than April 9, 2019 nor is there any evidence of record to suggest that he is entitled to a rating in excess of 20 percent at any time thereafter. 38 C.F.R. § 4.71a, Diagnostic Code 5237. There is no more reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 56 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for folliculitis of the face is remanded. 2. Entitlement to an initial rating higher than 30 percent for marked fibrosis, atrophy, and scarring of the scalp (scarring of the scalp) prior to April 9, 2019 and a rating higher than 50 percent thereafter, is remanded. A 30 percent rating is currently in effect for the Veteran's service-connected marked fibrosis, atrophy and scarring of the scalp prior to April 9, 2019 and a 50 percent rating is currently in effect from thereafter. The 30 percent award was based on observations of having a scalp scar 5 or more inches in length, a scar at least one-quarter inch wide at its widest part, and hypo- or hyper-pigmented scars in an area exceeding six square inches. The 50 percent award is based on observations of having a scar 5 or more inches in length, a scar at least one-quarter inch wide at its widest part, and hypo- or hyper-pigmented scars in an area exceeding six square inches. At the time of the March 2019 Board remand, the Veteran was also service-connected for folliculitis and perifolliculitis of the face. A noncompensable rating was currently in effect for this disability. However, according to the most recent code sheet issued in May 2020, the Veteran is no longer service connected for folliculitis and perifolliculitis of the face. Notably, the May 2020 rating decision granting a higher 50 percent rating is based on the scars on the scalp and on the face. The Board notes that in the April 2020 SSOC, the AOJ denied the claim of entitlement to an initial compensable rating for folliculitis of the face. However, the RO did not address or acknowledge whether the Veteran's service connection for folliculitis of the face was being severed. On remand, the RO must address the whether the Veteran's service-connected folliculitis of the face has been severed. With respect to scarring of the scalp, the January 2020 VA examiner noted that Veteran's skin conditions of the scalp have been resolved and that there was just residual scarring. The Board notes that the Veteran's scarring of the scalp was noted dating back to the May 2012 private examination in which the examiner also noted that the Veteran's skin changes included sensitivity to touch and partial actinic keratoses. Additionally, in the November 2013 NOD, the Veteran stated that he could not feel any pain on his scalp when receiving injections and also could not feel hot or cold because of the thick layers of the skin. In a December 2013 statement, the Veteran stated that his scalp would continually get infected because of ingrown hair and that his keloids would get infected and develop cysts, pimples, blisters that bleed and drain puss. While the Board has acknowledged that the January 2020 VA examiner noted that the Veteran's skin conditions of the scalp have resolved and that there was just residual scarring, it is unclear whether the Veteran is still unable to grow hair on the scalp, has loss of sensation, loss of feeling to temperature, and whether the Veteran's scalp is susceptible to getting reinfected regularly. As the Veteran has previously stated that his scalp was infected frequently, the Board finds that it is unclear whether the Veteran was examined during a period when his scalp was not infected or whether the Veteran's skin condition has resolved to the extent that his scalp can no longer become infected, he is able to grow hair, and there is no sensitivity to touch or temperature. On remand, another skin examination should be administered that clearly addresses the extent to which the Veteran's skin condition of the scalp and of the face have resolved. 3. Entitlement to service connection for a condition of the left foot and ankle is remanded. In March 2019, the Board remanded the Veteran's claim of left foot and ankle disability to schedule the Veteran for an examination and to obtain an etiology opinion. The AOJ previously denied the Veteran's claim, reasoning that there was no evidence of an underlying diagnosis for his complaints. The Board noted that January 2009 treatment records identify the Veteran's pain as possible osteoarthritis and March 2009 records note x-rays as showing a benign lytic lesion on the Veteran's left ankle. Additionally, the May 2012 private examination documents that the Veteran's report that he experiences left ankle pain since service four times a year with a pain level rated an 8 out of 10. The examiner was specifically instructed to address the Veteran's post-service treatment records documenting complaints of debilitating ankle and foot pain. The Veteran was examined in December 2019 during which he was diagnosed with a left foot sprain with an onset date of 2019. See January 2020 C&P Exam. The examiner specifically noted on the examination that imaging studies of the left foot or ankle had not been performed. In a corresponding opinion, the examiner opined that it was less likely than not that the Veteran's left ankle or foot condition was related to his in-service left foot injury. The examiner reasoned that there was not enough information in the treatment records to validate this claim and that the left foot or ankle sprain is more likely than not a different issue. The Board finds the December 2019 VA examination and opinion inadequate. First, the examiner did not perform imaging testing to confirm whether the Veteran has arthritis of the left ankle as documented in the May 2012 private examination. Second, the Veteran diagnosed the Veteran with a left ankle sprain with an onset date of 2019; however, given the examiner's brief reasoning for his opinion, it is unclear if this left ankle sprain was an isolated incident that occurred in 2019 or whether the Veteran alleged that it was a part of his recurrent left ankle problems since service. Third, the December 2019 examiner's reasoning for his negative opinion was that there was not enough information in the treatment records to validate this claim; however, it appears that the examiner only considered the left ankle sprain that he diagnosed in the corresponding opinion and that the examiner did not discuss the Veteran's statements of continued left ankle pain since service or the May 2012 private examination report in which recurrent left ankle arthritis was diagnosed. Accordingly, the Board finds that further examination and a medical opinion of the Veteran's left ankle and foot based on full consideration of all pertinent evidence of record, and supported by complete, clearly stated rationale is needed to resolve the claim on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to obtain an examination or opinion when developing a service connection claim, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. The RO must issue a rating decision addressing whether the Veteran's service connection for folliculitis of the face has been severed. If service-connection has not been severed, the RO must provide a corrected code sheet. 2. Noting that it appears the Veteran is currently still located outside of the country, take whatever steps are necessary to afford him the following examinations: a) Schedule the Veteran for an evaluation of the current severity of his service-connected skin disabilities of the scalp, face, and neck. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should address the severity of the Veteran's service-connected scalp condition (currently identified as marked fibrosis, atrophy and scarring of the scalp) and his service-connected skin rash of the face and neck (currently identified as folliculitis and perifolliculitis). To the extent possible, distinctions should be made as to the areas affected by, and number of disfiguring characteristics due to both groups of disabilities. If additional skin disabilities exist and are attributable to his service-connected disabilities, this should be made clear. In evaluating the scalp in particular, the examiner should address whether the Veteran's skin conditions have permanently resolved or whether the Veteran is just being evaluated during a period where his skin is not infected. The examiner must address the Veteran's statements that his scalp is sensitive to touch and temperature, he is unable to grow hair, and that his skin conditions frequently get infected. 3. Schedule the Veteran for an examination of the left foot and ankle. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the left foot and ankle. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. Please note that, for VA purposes, the term "disability" may refer to functional loss due to pain, with or without a diagnosable condition. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In rendering this opinion, the examiner should specifically address the Veteran's post-service treatment records documenting complaints of debilitating ankle and foot pain, as well as the Veteran's attribution of this condition to a June 1997 fall. The examiner must also address the May 2012 private examination in which the Veteran was diagnosed with recurrent arthritis. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.