Citation Nr: 21075555 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-22 403 DATE: December 20, 2021 ORDER Reduction of the rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint from 20 percent to 10 percent, effective September 17, 2010, was due to clerical error, and is reinstated. Entitlement to an increased rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint (with consideration of loss of use of right foot), rated as 20 percent disabling prior to January 7, 2011, from April 1, 2011 to April 24, 2015, July 1, 2015 to July 28, 2017, and from September 1, 2017, is denied. Entitlement to an increased rating of 20 percent, but no higher, is granted for radiculopathy of the right lower extremity, effective September 17, 2010, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 20 percent for radiculopathy of the right lower extremity, effective August 16, 2016, is denied. Entitlement to an increased rating of 30 percent, but no higher, for a cervical spine disability, is granted, effective September 17, 2010 to January 21, 2011, and from April 1, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a compensable rating for right foot surgical scars is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Reduction of the rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint from 20 percent to 10 percent, effective September 17, 2010, was due to clerical error. 2. Prior to January 7, 2011, and from April 1, 2011 to April 24, 2015, July 1, 2015 to July 28, 2017, and from September 1, 2017, the Veteran's status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint, involved amputation of the metatarsal head of one toe, and did not involve amputation of the great toe with removal of the metatarsal head, or involve amputation of all of the Veteran's toes; involved functional impairment due to pain resulting in not more than a moderately severe foot injury; and was not manifested by loss of use of the foot. 3. Effective September 17, 2010, the Veteran's radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis; and in consideration of the amputation rule for the right foot, is in receipt of the maximum combined of 40 percent, including the 20 percent rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint. 4. Effective September 17, 2010 to January 21, 2011, and from April 1, 2011, the Veteran's cervical spine disability is manifested by forward flexion mostly severely limited to 30 degrees of forward flexion with pain on any movement, akin to favorable ankylosis. 5. The Veteran's right foot surgical scars are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04; and are neither unstable nor painful. 6. The Veteran's service-connected disabilities do not render her unable to secure and follow a substantially gainful employment. CONCLUSIONS OF LAW 1. Reduction of the rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint from 20 percent to 10 percent, effective September 17, 2010, was done in error, and the 20 percent rating is reinstated. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The criteria for entitlement to an increased rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint (including consideration of loss of use of the foot), rated as 20 percent disabling prior to January 7, 2011, and from April 1, 2011 to April 24, 2015, July 1, 2015 to July 28, 2017, and from September 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(a); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Code 5172. 3. Effective September 17, 2010, the criteria for a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.68, 4.124a, Diagnostic Code 8520. 4. Effective August 16, 2016, the criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.68, 4.124a, Diagnostic Code 8520. 5. Effective September 17, 2010 to January 21, 2011, and from April 1, 2011, the criteria for a 30 percent rating, but no higher, for the cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 6. The criteria for a compensable disability rating for right foot surgical scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostics 7804 and 7805. 7. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1972 to March 1973, from May 1980 to October 1982, and from September 1990 to January 2000, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2020 at which time it was, in pertinent part, remanded for additional development. The directives of the Board's remand having been substantially complied with the case is now returned for appellate review. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See also Sharp v. Shulkin, 29 Vet. App. 26, 22 (2017) (providing that the examiner should "estimate the functional loss that would occur during flares.") 1. Reduction of the 20 percent rating to 10 percent, effective September 17, 2010, of the status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint Where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. Under 38 U.S.C. § 5112 (b)(10), the effective date of a reduction or discontinuance of compensation by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment. VA's Office of General Counsel has issued a precedential decision indicating that a reduction or discontinuance of benefits based on an erroneous award will be made in accordance with 38 U.S.C. § 5112 (b)(10) when it is determined that: (1) The beneficiary was not guilty of an act of commission, or omission which, in whole or in part, caused the erroneous award of benefits and had no knowledge thereof; and (2) VA either: (a) committed an administrative error, including an error of fact (e.g., the VA mistakes or overlooks the facts of record or makes a purely clerical error), or (b) committed an error of judgment (e.g., the VA fails to properly interpret, understand and follow existing Department instructions or regulatory or statutory requirements). VAOPGCPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. The Veteran has an original rating of 10 percent for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint, effective January 30, 2000. In a September 2011 rating decision, which is the rating decision on appeal, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 20 percent, effective September 17, 2010, for the Veteran's status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint. Later, in a January 2016 rating decision, the AOJ granted a temporary total evaluation because of treatment necessitating convalescence for the third metatarsal head, effective January 7, 2011, with a 20 percent rating assigned, effective April 1, 2011. The code sheet notes that there is a 10 percent rating, effective January 30, 2000, a 100 percent rating, effective January 7, 2011, and a 20 percent rating, effective April 1, 2011. In other words, the period from September 17, 2010, to January 7, 2011, which was formerly rated at 20 percent, appears now to be rated at 10 percent. As there is no discussion as to a reduction in rating from 20 percent, effective September 17, 2010, to 10 percent, in the decision, it appears that a clerical error was made. Of note, the combined evaluation for compensation appears to have remained correct, as a combined rating of 90 percent is in effect from September 17, 2010. Therefore, the Veteran's compensation does not appear to have been affected by the error. To avoid any further confusion, however, based the clerical error, the 20 percent rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint is reinstated, effective September 17, 2010, to January 7, 2011. 2. Entitlement to an increased rating for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint (with consideration of loss of use of the right foot) The Veteran's status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5172 for amputation of toes other than great toe, with removal of metatarsal head. Under Diagnostic Code 5172, when there has been amputation of one or two toes, other than the great toe, with removal of the metatarsal head a 20 percent rating is warranted. Without metatarsal involvement, a zero percent rating is provided. Id. Under Diagnostic Code 5170, amputation of all toes without metatarsal loss warrants a 30 percent rating. 38 C.F.R. § 4.71a. A January 2011 VA examination report shows that the Veteran had amputation of the third metatarsal. The most recent VA examination in June 2020 notes that the Veteran had third metatarsal head resection in January 2011 and insertion of graft jacket joint spacer and percutaneous pinning of the toe. The Board finds that a rating in excess of 20 percent is not warranted at any time throughout the period on appeal under Diagnostic Codes 5172 or 5170 based on amputation of the toes. The record does not reflect that the Veteran has had an amputation of the great toe with removal of the metatarsal head, or that she has had an amputation of all of her toes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5170 and 5171. Also for consideration is other impairment of the right foot related to the toe surgeries. The record shows that the Veteran has described increased right foot pain after the toe surgeries with prolonged weight-bearing activities. See July 2018 VA examination report. A June 2020 VA examination report shows that the Veteran has diagnoses of Freiberg infraction, third metatarsal osteotomy, third metatarsal head resection and insertion of graft jacket joint spacer and percutaneous pinning of the toe, fractures of the cuboid anterior process of the calcaneus and lateral navicular, status post first metatarsal bunionectomy and arthroplasties of the second, fourth, and fifth digit proximal interphalangeal (PIP) joints and third digit metatarsal phalangeal (MTP) joint, hammer toes, and neuroma excision, cheilectomy. In addition, the Veteran has diagnoses of Morton's neuroma, hallux valgus, hallux rigidus, tenosynovitis, pes planus and neurological impairment in the right foot. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function, whether the acts of balance, propulsion, etc. in the case of the foot could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2). "Loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be considered when making that determination. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017); Tucker v. West, 11 Vet. App. 369, 373 (1999). There is conflicting evidence of record as to whether the Veteran has a right foot disability related to the service-connected toe surgeries. A June 2020 VA examination report shows that it was at least as likely as not that the Veteran's right foot disability was incurred in service. The rationale was that review of the service treatment records documented a diagnosis for Freiberg infraction of the right third metatarsal in 1997 and she also underwent a right third metatarsal osteotomy in 1998. On the other hand, an April 2021 VA examiner found that the Veteran's right metatarsalgia, calcaneocuboid arthrodesis with hardware failure, right Morton's neuroma, right foot tenosynovitis of the flexor hallucis longus, right calcaneocuboid arthritis, right hallux valgus with first metatarsal phalangeal joint arthritis, right second ray plantar plate tear status post second ray plantar plate repair, right foot hammertoe deformities second, third fourth, and fifth status post repair and right pes planus was not caused or aggravated by her service-connected Freiberg infraction right third metatarsal, status post right third metatarsal osteotomy and right foot hammertoes status post repair. The rationale was that Freiberg infraction is cartilage degeneration of the lesser metatarsal heads and not an imbalance of the muscle of the foot. The examiner also found that it was less likely than not that the right sural neuritis was caused or aggravated by the service-connected Freiberg infraction of the right third metatarsal, status post right third metatarsal osteotomy and right foot hammertoes status post repair. As there is conflicting evidence of record as to whether the Veteran has other disabilities in the right foot due to the service-connected toe surgeries, the Board will resolve all doubt in favor of the Veteran that her present functional impairment in the right foot is due to her service-connected status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint. See Mittleider v. West, 11 Vet. App. 181 (1998) (When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, then 38 C.F.R. § 3.102, which requires the Board to employ reasonable doubt, dictates that such signs and symptoms be attributed to the service-connected disability.). Even with relating the functional impairment in the right foot to the service-connected status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint, the Veteran does not have more than a moderately severe foot injury under Diagnostic Code 5284, which warrants a 20 percent rating. Although the Veteran has complaints of pain in the right foot, the examiner in June 2020 found that the Veteran had no functional loss in the right lower extremity attributable to the claimed condition. Also, there was no pain on physical examination. The Veteran cannot receive two separate 20 percent ratings under Diagnostic Codes 5271 and 5284 because her impairment in the right foot is essentially pain especially with prolonged use. See 38 C.F.R. § 4.14. The evidence also does not demonstrate that she has loss of use of the foot. Under Diagnostic Code 5167, a 40 percent disability rating is assigned for loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5167. If loss of use is shown, Diagnostic Code 5167 indicates that a claimant is also entitled to special monthly compensation. "Loss of use" of a foot is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. A May 2018 VA electromyographic (EMG) consult shows that the Veteran reported that she had worsening numbness and weakness since her right foot surgery in July 2017. She stated that her foot felt dead. A July 2018 VA examination report shows that there was no functional impairment of the right extremities such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. In June 2020, the Veteran noted on examination that she could maintain balance when walking. She stated that she now had crossover toes and could not extend or flex her toes and that she avoided wearing sandals or high heels. She reported that although she had decreased sensation, she felt pressure and dryness which reminded her that her foot was there. Notwithstanding the Veteran's assessment of her foot feeling "dead," these findings do not rise to the level of loss of use of the foot with no effective functioning. The Board acknowledges that the Veteran has hammertoes of the second, third, fourth, and fifth toes, but notes that a noncompensable rating is assigned unless all toes are involved. 38 C.F.R. § 4.71a, Diagnostic Code 5282. The Board also acknowledges the findings of metatarsalgia. A 10 percent rating is assigned when there is metatarsalgia, anterior (Morton's disease), unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. To the extent that the Veteran's metatarsalgia (i.e., pain) is related to her inservice foot injury it is contemplated in the rating assigned under Diagnostic Code 5172. Thus, an additional separate rating is not warranted. 38 C.F.R. § 4.14. There also is conflicting evidence of record as to whether neurological impairment in the right foot is due to the toe surgeries or the Veteran's radiculopathy of the right lower extremity. As discussed in more detail below, the neurological impairment associated with the Veteran's right foot is addressed by the rating assigned under Diagnostic Code 8520 for radiculopathy of the right lower extremity. The Veteran cannot be rated twice for the same impairment under separate diagnostic codes. See 38 C.F.R. § 4.14. Based on the evidence of record, entitlement to an increased rating higher than 20 percent for status post Freiberg's infractions of the right third metatarsal head status post removal with degenerative joint disease of the first metatarsophalangeal joint, is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5172; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to an increased rating higher than 10 percent for radiculopathy of the right lower extremity prior to August 16, 2016, and higher than 20 percent thereafter The Veteran contends that she is entitled to a higher rating for radiculopathy of the right lower extremity. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). A January 2011 VA examination report shows the Veteran has pain in the lumbar spine that travels down the right leg and hip area. The pain level was moderate but could be exacerbated by physical activity, stress, and sitting or standing. During flare-ups she experienced functional impairment, which was described as pain and limitation of motion of the joint, described as hip, ankle, and knee sometimes locking up. Neurological examination of the lower extremities showed that motor function was within normal limits. Sensory examination to pinprick/pain, touch, position, vibration, and temperature was intact on the right. The right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. Sensory examination of the lumbar spine showed a sensory deficit in L1 for right upper anterior thigh, L2 for right anterior mid-thigh, L3 for right anterior lower thigh and right inner knee, and L4 for the right front leg and right medial knee. The right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The lower extremities showed no signs of pathologic reflexes. There were signs of lumbar intervertebral disc syndrome. The most likely peripheral nerves involved were the obturator nerve, external cutaneous nerve of the thigh, and the sciatic nerve. An August 2016 VA examination report shows moderate incomplete paralysis of the sciatic nerve. She had moderate intermittent pain, paresthesias, and numbness in the right lower extremities. A June 2020 VA examination report shows the Veteran had mild incomplete paralysis of the sciatic nerve. While the Veteran was assigned a 20 percent rating for radiculopathy in the right lower extremity based on the findings on examination in August 2016, given that the July 2011 VA examination report also noted moderate pain in the right lower extremity, all doubt is resolved in the Veteran's favor that she has had impairment akin to moderate incomplete paralysis of the right lower extremity for the entire appeal, i.e., since September 17, 2010. These findings do not demonstrate more than moderate incomplete paralysis of the sciatic nerve, which warrants a 20 percent rating under Diagnostic Code 8520. Regarding impairment of motor functions, the January 2011 VA examination report shows that motor function in the right lower extremity was within normal limits. However, the Veteran stated that she had falls due to her spine with paresthesia, numbness, and weakness of the leg and foot. The August 2016 VA examination report shows normal muscle strength testing in the right lower extremity. She had a slow gait, however, as a result of her right lower extremity radiculopathy. The June 2020 VA examination report found that there was no electrodiagnostic evidence of an acute right motor radiculopathy affecting the L2-S1 nerve roots. Muscle strength testing in June 2020 was normal in right knee extension and ankle plantar flexion, and there was active movement against some resistance in the right ankle dorsiflexion. There were no trophic changes reported on examination in August 2016 or June 2020. While the Veteran noted on her notice of disagreement in October 2011 that the three middle toes were totally numb and darkly disfigured, there is no objective evidence to support trophic changes outside of the time frame for the total temporary rating based on convalescence due to the right foot surgeries. Regarding sensory disturbance, the January 2011 VA examination report notes sensory deficits of L1 for right upper anterior thigh, L2 for right anterior mid-thigh, L3 for right anterior lower thigh and right inner knee, and L4 for the right front leg and right medial knee. The August 2016 VA examination report shows that sensory examination was normal in the right lower extremity except for the foot/ toes (L5), which was decreased. The same sensory findings were reported on examination in June 2020. The examination report in June 2020 also specifically noted that there was electrodiagnostic evidence of a symmetric sensory peripheral neuropathy with axonal loss features affecting the lower limbs. Regarding loss of reflexes, the January 2011 VA examination report shows reflexes revealed knee jerk 2+ and ankle jerk 2+ in the right lower extremity. Examination revealed no signs of pathologic reflexes in the lower extremity and there were normal cutaneous reflexes. The August 2016 VA examination report showed normal reflexes in the right knee (2+) and hypoactive reflexes in the right ankle (1+). Reflex examination in June 2020 was normal (2+) in the right ankle but showed hypoactive (1+) in the right knee. Regarding pain, as noted, the Veteran reported moderate radiating pain in the right lower extremity on examination in January 2011. The August 2016 VA examination report also noted moderate intermittent pain in the right lower extremity on examination. The Veteran described the pain as sharp pain that occurred with certain movements. She noted on examination in June 2020 that her radiculopathy had worsened causing right hip pain. The pain started in her lower right back and then at the knee goes to the back of her leg and terminates in her heel. She rated her pain as an 8 out of 10, which was constant, and activity related. The pain that was attributed to her peripheral neuropathy was noted as constant, mild pain in the right lower extremity. There also was mild paresthesias and/ or dysesthesias and numbness in the right lower extremity. Regarding muscle atrophy, the January 2011 VA examination report shows that there was no muscle atrophy present in the limbs. The August 2016 and June 2020 VA examination reports also showed no muscle atrophy. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board acknowledges the lay assertions of being unable to run, jump, jog and having difficulty with prolonged walking/ standing, walking stairs and sometime difficulty driving because of her right foot. See, e.g., August 2016 VA examination report. She further stated that she had falls due to her spine with paresthesia, numbness, and weakness of the leg and foot on examination in June 2020. Notwithstanding the Veteran's complaints, muscle strength testing in June 2020 was normal in right knee extension and ankle plantar flexion, and there was active movement against some resistance in the right ankle dorsiflexion. The Veteran also reported on examination in June 2020 that while she had significant loss of sensation in her right foot, she could still maintain balance when walking. The Veteran's complaints of functional impairment are considered under the rating for moderate incomplete paralysis of the right lower extremity. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Of note, the bowel and bladder problems were noted on examination in January 2011, but the examiner noted that the bowel and bladder dysfunction was not caused by intervertebral disc syndrome. While the January 2011 VA examination report noted that there were other nerves involved including sensory impairment in the obturator nerve and external cutaneous nerve of the thigh, separate ratings under Diagnostic Codes 8528 (obturator nerve) and 8529 (external cutaneous nerve of the thigh) would not warrant ratings higher than 0 percent based on mild or moderate impairment. Also, subsequent neurological testing did not demonstrate that these nerves were involved in the radiculopathy of the right lower extremity. Therefore, only the sciatic nerve is involved based on the most probative medical findings of record. Medical findings show that the Veteran also had foot drop. The Veteran's case is somewhat complicated by the fact that she also has a service-connected right foot disability including multiple surgeries on the toes, as noted above. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve involves foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. The medical evidence of record, however, does not demonstrate complete paralysis of the sciatic nerve. The VA examinations in August 2016 and June 2020 demonstrate mild to moderate incomplete paralysis of the sciatic nerve. Some of the evidence does not relate the findings of foot drop to her service-connected radiculopathy of the right lower extremity. An August 2016 VA examination report shows that the Veteran had peripheral neuropathy of the right foot, which was due to residuals of multiple right foot surgeries and was separate from the radicular pain. Specifically, it was noted that the radicular nerve involvement was the sciatic nerve but that the numbness, paresthesia, and intermittent pain in the right foot was not radicular. The examiner found that this was due to multiple right foot surgeries the Veteran had that involved the distal cutaneous braches of the sural nerve (moderate severity) and the distal cutaneous branches of the lateral plantar nerve (moderate severity). Of note, the Veteran is service connected for surgeries on her third metatarsal. Thus, any impairment in the foot related to these surgeries also would be service connected. Nonetheless, as other medical evidence relates the Veteran's foot neurological impairment to her lumbar spine, it is more beneficial to the Veteran to be rated under relevant diagnostic codes for neurological impairment in the foot. A March 2017 VA treatment record notes that they needed an electromyographic (EMG) test to discover the severity of her radiculopathy and confirm the presence of foot drop. EMG testing in March 2017 showed that there was no electrodiagnostic evidence of an acute right motor radiculopathy affecting the L2-S1 nerve roots. The reduced recruitment seen in the tibia anterior and vastus medial could be suggestive of a right L4-5 partial conduction block without axonal loss. However, the examiner noted that these findings might also be effort dependent in the setting of a chronic foot drop. A June 2017 VA treatment record also notes that the Veteran had right foot drop. A June 2020 VA examination report found that the Veteran's previous diagnosis of radiculopathy of the right lower extremity for service connection was made in error based on findings on the service treatment records. Service connection for lumbosacral strain with radiculopathy was granted in a June 2000 rating decision, with a 10 percent rating assigned from January 30, 2000. Thus, it is a protected rating. A disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 C.F.R. § 3.952. Moreover, the June 2020 VA examiner did not offer any alternate explanation for the cause of the Veteran's radiculopathy in the right lower extremity other than to note that the etiology was unclear and that it was possibly related to long-standing hypothyroidism. The medical evidence of record throughout the appeal acknowledges that the Veteran has radiculopathy of the right lower extremity related to her lumbar spine disability. Most recently, an April 2021 VA examination report shows that the Veteran's right foot drop was due to moderate to severe lumbar spinal stenosis. Therefore, the most probative evidence of record relates the Veteran's radiculopathy of the right lower extremity to the lumbar spine disability. As noted, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a schedular maximum evaluation of 80 percent disabling is warranted for complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As noted, the evidence does not demonstrate that the Veteran has complete paralysis of the sciatic nerve. Also, as noted above, the evidence does not demonstrate that she has loss of use of the foot. See 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Code 5167. The Veteran noted on examination in June 2020 that she had significant loss of sensation in her right foot but could still maintain balance when walking. She stated that she now had crossover toes and could extend or flex her toes and that she avoided wearing sandals or high heels. She reported that although she had decreased sensation, she felt pressure and dryness which reminded her that her foot was there. These findings do not rise to the level of complete paralysis of the sciatic nerve or loss of use of the foot with no effective functioning. For the reasons stated above, the Board finds that the preponderance of the evidence demonstrates that a 20 percent rating, but no higher, is warranted for the Veteran's service-connected radiculopathy of the right lower extremity, effective September 17, 2010. However, while a higher rating of 20 percent for peripheral neuropathy of the sciatic nerve is warranted, effective September 17, 2010, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for radiculopathy of the right lower extremity. To the extent that the claim is denied, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased rating higher than 20 percent for a cervical spine disability prior to January 21, 2011, and from April 1, 2011 The Veteran contends that she is entitled to a higher rating for her cervical spine disability based on functional impairment due to pain. The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237. Effective February 9, 2021, some portions of the Schedule of Ratings for the Musculoskeletal System under 38 C.F.R. § 4.71a were revised. Diagnostic Code 5010 (for arthritis due to trauma) prior to February 9, 2021, was rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Effective February 9, 2021, Diagnostic Code 5010 notes that it rates post-traumatic arthritis: Rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Diagnostic Code 5003 notes that it rates degenerative arthritis other than post-traumatic and otherwise remains the same. A January 2011 VA examination report notes that the Veteran's cervical spine condition was due to injury. However, the diagnosis given on the January 2011 examination was degenerative arthritis. X-ray examination in August 2014 showed that the Veteran had postoperative and degenerative arthritis of the cervical spine. Regardless of whether the Veteran's arthritis in the cervical spine is degenerative or traumatic (or both), as noted below, the primary functional impairment is limitation of motion. Diagnostic Code 5237 (for cervical strain) was not affected by the revision to the Schedule of Ratings for the Musculoskeletal System and is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria"). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A January 2011 VA examination report shows that the Veteran had radiating pain on movement described as with head and neck movement. Examination revealed tenderness to palpation. There was no ankylosis of the cervical spine. Range of motion studies showed forward flexion to 30 degrees with no additional limitation of motion on repetitive use testing. The joint function of the cervical spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner noted that there were signs of cervical intervertebral disc syndrome. Cervical spine x-ray examination showed degenerative arthritis. Thus, the diagnosis was changed from cervical strain to cervical spondylosis with intervertebral disc syndrome. An August 2016 VA examination report shows the Veteran had an anterior discectomy and fusion C5-C7 due to cervical neuroforaminal and spinal stenosis in January 2011. While there were no flare-ups reported, there was limited range of motion, which caused functional loss in that she had difficulty driving or doing tasks that required her to look above head level. Range of motion studies showed forward flexion to 45 degrees. There was no additional loss of motion after repetitive use testing. There was no pain on weight-bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. X-ray examination showed that the Veteran had postoperative and degenerative arthritis noted in August 2014. It was noted that the Veteran did not have intervertebral disc syndrome of the cervical spine. A June 2020 VA examination report shows the Veteran had a diagnosis of degenerative arthritis of the cervical spine. The Veteran stated that she has constant pain in her neck and that when she turned her head to the left her neck tightened on the right. She endorsed constant pain on the right side of her neck and indicated that she had to sleep with a soft collar neck brace to avoid being unable to move her head in the morning. She stated that due to worsening pain she underwent a cervical fusion in 2010 and post-operative had continual pain. The cervical procedure performed in January 2011 was noted along with the post-surgical diagnosis of C5-C6 and C6-C7 anterior cervical diskectomy and arthrodesis with Medtronic PEEK interbody spaces and bone marrow aspirate; and C5 through C7 anterior instrumentation with Venture plate and screws scar, status anterior diskectomy and fusion C5-C7 cervical spondylosis with intervertebral disc syndrome. Functional loss included being unable to turn her head to look out the window when she was driving. Range of motion studies showed forward flexion to 35 degrees. There was no additional loss of function or range of motion after repetitive use testing. It also was noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. All ranges of motion resulted in pain in the cervical spine. There was no pain with weight-bearing or ankylosis. Although there was a prior note of intervertebral disc syndrome, the examiner noted that there was no intervertebral disc syndrome of the cervical spine. Review of the medical evidence of record shows forward flexion of the cervical spine was most severely limited to 30 degrees, as noted on the January 2011 examination report. While there was no ankylosis reported, the Veteran described radiating pain on movement with any head and neck movement. The August 2016 VA examination report also noted that the Veteran had limited range of motion, which caused functional loss in that she had difficulty driving or doing tasks that required her to look above head level. In addition, the June 2020 VA examination report shows that the Veteran had constant pain in her neck and that when she turned her head to the left her neck tightened on the right. She endorsed constant pain on the right side of her neck and indicated that she had to sleep with a soft collar neck brace to avoid being unable to move her head in the morning. Functional loss included being unable to turn her head to look out the window when she was driving. Based on the Veteran's reports of neck pain with any movement, including restrictions in being able to turn her head or look above eye level while driving, resolving all doubt in the Veteran's favor, the medical evidence more closely approximates the criteria for a 30 percent rating throughout the appeal, i.e., since September 17, 2010. Pain on any movement is akin to favorable ankylosis of the cervical spine. The functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis. Chavis v. McDonough, __ Vet. App. __, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). A rating higher than 30 percent for the cervical spine is not warranted, however. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to constant pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the Veteran's symptoms do not more nearly approximate the cervical spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Of note, effective February 7, 2021, Diagnostic Code 5243 was amended to read: "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." There is conflicting evidence as to whether the Veteran has IVDS of the cervical spine. However, there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, which is required for the higher 40 percent rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Therefore, a higher rating under Diagnostic Code 5243 does not apply. Regarding neurological impairment, the Veteran is already service connected for radiculopathy of the left upper extremity. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her cervical spine disability. The Veteran reported on her VA-Form 9 in May 2016 that she was hospitalized with vertigo due to her neck disability. A February 2016 emergency room record notes the Veteran was seen for dizziness. She also reported neck pain. While the Veteran has been evaluated multiple times for her complaints, there are no probative medical findings showing any other neurological impairment related to the Veteran's cervical spine. The Veteran was examined in February 2016 with complaints of dizziness and neck pain and found to have no focal neurological findings except for blurred vision. After the case was remanded so that a medical opinion could be provided to address whether the Veteran's vertigo was related to her neck disability, a May 2021 VA medical opinion found that the Veteran had labyrinthitis and otitis media of the left ear. The examiner found that the Veteran's labyrinthitis and otitis media of the left ear were separate entities entirely from the Veteran's neck disability and unrelated to it. The examiner noted that a thorough review of the medical literature failed to demonstrate a causal relationship. A nexus was not established. The examiner also found that the labyrinthitis and otitis media were not aggravated by the cervical spine disability and that a baseline level of disability could not be established. The Veteran is not competent to attribute any other neurological symptoms to her cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, any statements of neurological impairment related to her cervical spine disability are not competent evidence. For the foregoing reasons, a rating of 30 percent, but no higher, is warranted for the cervical spine disability, effective September 17, 2010 to January 21, 2011, and from April 1, 2011. In denying any higher ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a compensable rating for right foot surgical scars The Veteran contends that she is entitled to a higher rating for her right foot surgical scars. Effective January 18, 2011, the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal head were evaluated as 0 percent disabling under Diagnostic Code 7804 (for unstable or painful scars). A March 2019 rating decision granted service connection for 5 surgical scars on the right foot, and assigned a 0 percent rating, combing with the rating assigned for the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal head, effective August 16, 2016. The 0 percent was assigned under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Codes 7804 and 7805 were not changed by the August 13, 2018, amendments. Diagnostic Code 7804 addresses scars that are unstable or painful. One or two scars that are unstable or painful are rated as 10 percent disabling. Three or four scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. A January 2011 VA examination report noted that the Veteran had casted foot due to amputation of the third toe with scar. The subjective factors were history of foot pain. The objective factors were that the Veteran had a scar on the right third toe status post metatarsal removal. It was a linear scar and measured 3 cm by 1 cm. The scar was not painful on examination. There was no skin breakdown. This was a superficial scar with no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation. The scar was not disfiguring and did not limit the Veteran's motion or function. The Veteran argued on her notice of disagreement that the scars were not properly evaluated as her foot was casted and bandaged due to surgery. She noted that the three middle toes were totally numb and darkly disfigured. An August 2016 VA examination report shows surgical scars of the right foot due to Freiberg's infractions of the 3rd metatarsal and surgical scars status post plantar plate repair, syndactylization of the 3rd and 4th digits and calcaneocuboid arthrodesis right foot. The scars were described as a vertical scar on the dorsum of the right toe, 5.5 cm x 0.3 cm; a vertical scar on the dorsum of the right foot 2nd digit, 5.5 cm x 0.3 cm; a vertical scar between the dorsum of the right foot between the 2nd and 3rd digits, 3 x 1 cm (including suture scars), vertical scar on the dorsal of the 3rd digit of the right foot, 4 x 1 cm (including suture scars), vertical scar between the 3rd and 4th digits extending onto the dorsum of the right forefoot, 4.5 cm x 0.75 cm, and a wide crescent-shaped scar on the lateral posterior/ mid foot, 8 x 0.2 cm. None of the scars were painful, unstable with frequent loss of covering, or both painful and unstable. The area of scars totaled 12.275 cm2. There were no deep non-linear scars. A July 2018 VA examination report shows a scar on the right foot measuring 5.9 cm x 0.3 cm. The scar was not painful or unstable; did not have a total area equal to or greater than 39 square cm; and was not located on the head, face, or neck. In June 2020, a VA examination report shows the Veteran had a scar on the dorsal of the right great toe, 5.0 cm x 0.1 cm, dorsal of the 2nd toe, 5.5 cm x 0.1 cm, dorsal of the 3rd toe, 5.5 cm x 0.1 cm, dorsal of the 4th toe, 5.5 cm x 0.1 cm, and dorsal of the 5th toe, 3.0 cm x 0.1 cm. The scars were not painful or unstable; did not have a total area equal to or greater than 39 square cm; and were not located on the head, face, or neck. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal head under Diagnostic Code 7804, as there are no scars that are unstable or painful. A compensable rating also is not warranted under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include discoloration after the surgery, numbness, and pain, and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she does not assert, and medical records do not show, that the Veteran's residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal are manifest by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. While the Veteran noted that her toes were discolored right after her surgery in January 2011, the remaining records do not show any discoloration in the toes outside of the timeframe when she was rated as totally disabled based on convalescence from surgery, effective January 7, 2011 to April 1, 2011. Also, the impairment associated with numbness and pain in the foot and toes is addressed by the ratings assigned for right foot under Diagnostic Code 5172 and the right lower extremity under Diagnostic Code 8520. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for residual surgical scars associated with status post Freiberg's infractions of the right third metatarsal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In its February 2020 remand, the Board found that the issue of entitlement to a TDIU had been raised by the record as part and parcel of the increased rating claims on appeal. The Board noted that the Veteran submitted a statement with the increased rating claim on appeal that her "condition" caused her to retire early in January 2009. See September 2010 correspondence. The Board further noted that while the Veteran is in receipt of a total schedular rating from August 4, 2017, the award of a TDIU could entitle her to retroactive benefits. As such, the issue of a TDIU was remanded to afford the Veteran an opportunity to complete and return a completed VA FORM 21-8940 (formal TDIU application) form. By an April 2020 letter, the RO requested that the Veteran complete, sign, and return the enclosed VA FORM 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The letter also included a section detailing the legal and evidentiary requirements for a TDIU. By an August 2021 supplemental statement of the case (SSOC) and August 2021 rating decision, the RO denied a TDIU, and the Veteran was notified of this decision the same month. The SSOC and rating decision noted that the claim was denied because the RO had not received a completed VA FORM 21-8940. To date, the Veteran has not submitted a VA FORM 21-8940. See Olson v. Principi, 3 Vet. App. 480 (1992) (holding that VA's "'duty to assist is not always a one-way street'; nor is it a blind alley," quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). In addition, there is no indication that the Veteran intends to submit a completed VA FORM 21-8940. Although the record contains some information regarding her employment history, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. Of note, most recent VA examinations addressing the cervical spine, radiculopathy of the right lower extremity, and the right foot disabilities found that the disabilities did not impact her ability to work. See, e.g., June 2020 VA examination reports. Further, and although the Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) since September 17, 2010, the VA FORM 21-8940 requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. This information can be critical to resolution of this case. Moreover, the Court has indicated that failure to provide this Form or equivalent information can constitute abandonment of the TDIU claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); see also 38 C.F.R. § 3.158. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, a TDIU is not warranted. LLOYD MASON CRAMP Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.