Citation Nr: 21005362
Decision Date: 02/01/21	Archive Date: 02/01/21

DOCKET NO. 20-00 392
DATE: February 1, 2021

ORDER

For the period on appeal from October 30, 2017, to March 19, 2018, an increased evaluation in excess of 40 percent for the Veteran’s service-connected low back disability, to include degenerative arthritis, is denied.

For the period on appeal from March 20, 2018, an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability, to include degenerative arthritis with intervertebral disc syndrome (IVDS), is denied.

For the period on appeal from July 11, 2020, a separate evaluation of 20 percent under Diagnostic Code 8520, but no greater, for the Veteran’s disability of the right lower extremity, to include moderate radiculopathy of the right sciatic nerve associated with the Veteran’s service-connected low back disability, is granted.

For the period on appeal from July 11, 2020, a separate evaluation of 10 percent under Diagnostic Code 8520, but no greater, for the Veteran’s disability of the left lower extremity, to include mild radiculopathy of the left sciatic nerve associated with the Veteran’s service-connected low back disability, is granted.

For the entire period on appeal, a compensable evaluation under Diagnostic Code 7802 for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome secondary to his service-connected left wrist disability, is denied.

For the entire period on appeal, an increased evaluation in excess of 10 percent under Diagnostic Code 7804 for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome secondary to his service-connected left wrist disability, is denied. 

A total disability rating based upon individual employability (TDIU) on a schedular basis due to the Veteran’s service-connected disabilities is granted.

The appeal for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence has been withdrawn.

The appeal for an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss has been withdrawn.

REMANDED

Entitlement to an increased evaluation in excess of 30 percent for the Veteran’s service-connected left wrist disability, status post repair of median, ulnar nerves, carpal tunnel syndrome and flexion tendon due to laceration, is remanded.

Entitlement to an extension of special monthly compensation based on housebound criteria being met beyond November 1, 2018, is remanded.

FINDINGS OF FACT

1. For the period on appeal from October 30, 2017, to March 19, 2018, the Veteran’s service-connected low back disability has manifested pain, forward flexion of the thoracolumbar spine limited no less than 60 degrees, a combined range of motion of the thoracolumbar spine of no less than 135 degrees, without evidence of the following: unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; or Intervertebral Disc Syndrome (IVDS) with incapacitating episodes.

2. For the period on appeal from March 20, 2018, the Veteran’s service-connected low back disability has manifested pain, muscle spasms and guarding, forward flexion of the thoracolumbar spine limited no less than 40 degrees, a combined range of motion of the thoracolumbar spine of no less than 110 degrees, without evidence of the following: forward flexion of the thoracolumbar spine 30 degrees or less; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or Intervertebral Disc Syndrome (IVDS) with incapacitating episodes.

3. For the period on appeal from July 11, 2020, the Veteran’s right lower extremity manifested moderate symptoms of radiculopathy, to include moderate pain, numbness, and tingling in the right lower extremity, secondary to his service-connected low back disability, without evidence of the following: complete paralysis to include dangling or dropping of the foot, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost; severe incomplete paralysis, with marked muscular atrophy; or moderately severe paralysis. 

4. For the period on appeal from July 11, 2020, the Veteran’s left lower extremity manifested mild symptoms of radiculopathy, to include mild pain, numbness, and tingling in the left lower extremity, secondary to his service-connected low back disability, without evidence of the following: complete paralysis to include dangling or dropping of the foot, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost; severe incomplete paralysis, with marked muscular atrophy; moderately severe paralysis; or moderate paralysis.

5. For the entire period on appeal, the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome, with a total area of all related scars measured as less than 144 square inches, which is superficial and nonlinear but not unstable, associated with underlying soft tissue damage, due to a burn, or causing functional loss.

6. For the entire period on appeal, the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome, with a total area of all related scars measured as approximately 6 square inches, which is well-healed with tenderness to light touch but not unstable, associated with underlying soft tissue damage, due to a burn, or causing functional loss. 

7. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record is in relative equipoise regarding whether the Veteran’s service-connected disabilities have rendered him unable to secure or to follow a substantially gainful occupation.

8. In April 2020, prior to the promulgation of a decision in the instant appeal, the Board received notification from the Veteran of his request to withdraw his claim for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence.

9. In April 2020, prior to the promulgation of a decision in the instant appeal, the Board received notification from the Veteran of his request to withdraw his claim for an increased compensable evaluation for his service-connected bilateral hearing loss.

CONCLUSIONS OF LAW

1. For the period on appeal from October 30, 2017, to March 19, 2018, the criteria for the assignment of an increased evaluation in excess of 40 percent for the Veteran’s service-connected low back disability have not been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242.

2. For the period on appeal from March 20, 2018, the criteria for the assignment of an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability have not been met.  38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5242, 5243.

3. For the period on appeal from July 11, 2020, the criteria for a separate 20 percent evaluation for the Veteran’s moderate radiculopathy of the right lower extremity have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8520.

4. For the period on appeal from July 11, 2020, the criteria for a separate 10 percent evaluation for the Veteran’s mild radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8520. 

5. For the entire period on appeal, the criteria for the assignment of an increased compensable evaluation for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome, have not been satisfied.  38 U.S.C. § 1101, 1110, 1131, 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.69, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805.

6. For the entire period on appeal, the criteria for the assignment of an increased evaluation in excess of 10 percent for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome, have not been satisfied.  38 U.S.C. § 1101, 1110, 1131, 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.69, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805.

7. The criteria for entitlement to a TDIU on a schedular basis have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

8. The criteria for the Veteran’s withdrawal of his claim for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020).

9. The criteria for the Veteran’s withdrawal of his claim for an increased compensable evaluation for his service-connected bilateral hearing loss have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the U.S. Army from July 1987 to October 1995.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in April 2018 and January 2019.  The Veteran’s Form 9 indicates that he did not request a Board hearing.

The Board notes that a September 2020 rating decision granted the Veteran’s service connection claims for bowel and bladder disabilities as secondary to his service-connected low back disability; accordingly, as the Veteran has been awarded the maximum benefit sought for such claims, the issue of service connection for the Veteran’s bowel and bladder disabilities are no longer in appellate status before the Board.  See AB v. Brown, 6 Vet. App. 35, 39-40 (1993).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  See 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history.  See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  See 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability.  See 38 C.F.R. § 4.1, 4.2; Schafrath,1 Vet. App. at 595.  Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings.  See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided.  See 38 C.F.R. § 4.14.  Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Effective dates for disability ratings may be established up to one year prior to the date of claim if, based upon all the evidence of record, it can be factually ascertained that an increase in the Veteran’s service-connected disability occurred during that year preceding the claim.  See 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  See 38 C.F.R. § 4.40.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  See id.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  See id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See id. 

The factors involved in evaluating and rating disabilities of the joints include the following:  less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse.  See 38 C.F.R. § 4.45.  Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above.  See Schafrath, 1 Vet. App. at 592.  Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  See id.

Where the veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints.  See 38 C.F.R. § 4.59.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  See id.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See id.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  See id.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint.  See id. 

When adjudicating disabilities evaluated based upon limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment.  See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).  In applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  See id.  Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination.  See id.  Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology.  See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011).  However, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment; see id.; however, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).

Once the evidence has been assembled in the record, it is the Board’s responsibility to consider all lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).  In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  The preponderance of the evidence must weigh against the Veteran’s claim in order for it to be denied.  See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996).

1. For the period on appeal from October 30, 2017, to March 19, 2018, an increased evaluation in excess of 40 percent for the Veteran’s service-connected low back disability, to include degenerative arthritis with intervertebral disc syndrome (IVDS), is denied.

2. For the period on appeal from March 20, 2018, an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability, to include degenerative arthritis with intervertebral disc syndrome (IVDS), is denied.

3. For the period on appeal from July 11, 2020, a separate evaluation of 20 percent under Diagnostic Code 8520, but no greater, for the Veteran’s disability of the right lower extremity, to include moderate radiculopathy of the right sciatic nerve associated with the Veteran’s service-connected low back disability, is granted.

4. For the period on appeal from July 11, 2020, a separate evaluation of 10 percent under Diagnostic Code 8520, but no greater, for the Veteran’s disability of the left lower extremity, to include mild radiculopathy of the left sciatic nerve associated with the Veteran’s service-connected low back disability, is granted.

In April 1996, the Veteran’s low back disability was awarded service connection and assigned a 10 percent evaluation, effective October 7, 1995.  During the period on appeal from October 30, 2017, the Veteran has been awarded the following evaluations for his service-connected low back disability: (1) a 40 percent evaluation under Diagnostic Code 5242, effective March 5, 2007; (2) a 20 percent evaluation under Diagnostic Code 5242, effective March 20, 2018; and (3) a 20 percent evaluation under Diagnostic Code 5242-5243, effective October 15, 2018.

The Veteran contends that the severity of his service-connected low back disability warrants an increased evaluation in excess of 40 percent for the period on appeal from October 30, 2017 to March 19, 2018, and an increased evaluation in excess of 20 percent for the period on appeal from March 20, 2018, as well as the award of separate evaluations for his radiculopathy of the bilateral lower extremities.

After careful review, and for the reasons set forth below, the Board finds as follows: (1) for the period on appeal from October 30, 2017, to March 19, 2018, the severity of the Veteran’s service-connected low back disability does not warrant an increased evaluation in excess of 40 percent; (2) for the period on appeal from March 20, 2018, the severity of the Veteran’s service-connected low back disability does not warrant an increased evaluation in excess of 20 percent; (3) for the period on appeal from July 11, 2020, the Veteran’s service-connected low back disability warrants a separate evaluation of 20 percent under Diagnostic Code 8520 for moderate radiculopathy of the right lower extremity, based upon evidence of the Veteran’s moderate pain, numbness, and tingling in the right leg; and (4) for the period on appeal from July 11, 2020, the Veteran’s service-connected low back disability warrants a separate evaluation of 10 percent under Diagnostic Code 8520 for mild radiculopathy of the left lower extremity, based upon evidence of the Veteran’s mild pain, numbness, and tingling of the left leg. 

Disabilities of the lumbar spine or low back are evaluated under the criteria set forth in Diagnostic Codes 5235 through 5243.  See 38 C.F.R. § 4.71a.  Diagnostic Code 5242 provides that evaluations of degenerative arthritis of the lumbar spine shall be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  See 38 C.F.R. § 4.71a.  

The General Rating Formula provides that 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, evaluations of the spine apply as follows: (1) a 100 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire spine; (2) a 50 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine; (3) a 40 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; (4) a 30 percent evaluation is warranted where there is evidence of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine; (5) a 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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; and (6) a 10 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  See id.

Note 1 requires the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  See id.  Note 2 provides that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See id.  Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  See id.  Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.  Note 4 requires that each range of motion measurement be rounded to the nearest five degrees.  See id.  

Note 5 provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  See id.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note 6 provides that disabilities of the thoracolumbar and cervical spine segments, must be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  See id.  

If applicable, spinal disabilities manifesting IVDS based on incapacitating episodes (preoperatively or postoperatively) may be rated under either the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25.  The IVDS Rating Formula provides as follows: (1) a 60 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; (2) a 40 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; (3) a 20 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and (4) a 10 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  See 38 C.F.R. § 4.71a.

For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires treatment by a physician and bed rest prescribed by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment.  See id., Note 2. 

Degenerative arthritis established by x-ray findings must be evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  See id.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  See id.  In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, will warrant a 20 percent rating.  See id.  X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups will warrant a 10 percent rating.  See id.  The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

The assignment of a particular diagnostic code depends upon the facts of each particular case, and the Board is authorized to choose an appropriate diagnostic code that is supported by both the evidence of record and a sufficiently articulated rationale.  See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993).  Moreover, service connection for a disability is not severed when the diagnostic code assigned to that disability is revised in order to more accurately reflect the veteran’s relevant medical history, diagnoses, and demonstrated symptomatology.  See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

As stated above, VA regulations require that any evaluation of a disability of the lumbar spine must also include a separate evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1.  

Neurological abnormalities of the sciatic nerve are governed by Diagnostic Codes 8520 (paralysis), 8620 (neuritis), and 8720 (neuralgia).  See 38 C.F.R. § 4.124a.  

Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrant a 60 percent disability rating.  A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost.  See 38 C.F.R. § 4.121a, Diagnostic Code 8520.

The terms “severe,” “moderate,” and “mild” are not defined in the Rating Schedule; thus, rather than applying a mechanical formula, VA must evaluate the totality of the evidence of record.  See 38 C.F.R. § 4.6.  In applying the schedular criteria for rating peripheral nerve disabilities, 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.  See 38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  See id. 

In this case, as stated above, the Veteran’s low back disability, has been evaluated under Diagnostic Code 5242 as 40 percent disabling from March 5, 2007, and as 20 percent disabling under Diagnostic Code 5242 from March 20, 2018, and as 20 percent disabling under Diagnostic Code 5243 from October 15, 2018.  The Veteran contends that the severity of his service-connected low back disability warrants increased evaluations for each period on appeal, as well as separate evaluations for radiculopathy of the bilateral lower extremities associated with his service-connected low back disability.  

For the reasons set forth below, the Board finds that although no increased evaluations under Diagnostic Coded 5242 or 5243 are warranted in this case, separate evaluations for the Veteran’s radiculopathy of the bilateral lower extremities are in fact warranted as follows: (1) a separate 20 percent evaluation under Diagnostic Code 8520 for the Veteran’s moderate radiculopathy of the right sciatic nerve; and (2) a separate 10 percent evaluation under Diagnostic Code 8520 for the Veteran’s mild radiculopathy of the left sciatic nerve.

However, in so finding, the Board also finds that a preponderance of the evidence of record does not support any of the following: (1) an evaluation in excess of 20 percent under Diagnostic Codes 5242 or 5243 for the Veteran’s service-connected low back disability, see 38 C.F.R. § 4.71a; (2) an evaluation in excess of 20 percent under Diagnostic Code 8520 for moderate radiculopathy of the right lower extremity; or (3) an evaluation in excess of 10 percent under Diagnostic Code 8520 for mild radiculopathy of the left lower extremity.  See 38 C.F.R. § 4.124a.  

Moreover, as the Veteran filed the instant increased rating claim for his low back disability on October 30, 2018, the Board has considered whether it was factually ascertainable that the Veteran’s service-connected low back disability exhibited signs of worsening and manifested symptoms of radiculopathy of the bilateral lower extremities as early as October 30, 2017.  See 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2).  

Prior to the period on appeal, the Veteran was afforded a May 2016 VA examination which culminated in a report diagnosing the Veteran with degenerative arthritis of the spine and spondylosis and indicating the following: (1) the Veteran’s report of increased intermittent pain and stiffness, including increased pain with prolonged standing and sitting; (2) the Veteran’s report of flareups described as daily pain with prolonged standing and sitting lasting several hours; (3) objective evidence of the Veteran’s limited range of motion, to include forward flexion limited to 60 degrees and a combined range of motion limited to 135 degrees; (4) no guarding or muscle spasm of the thoracolumbar spine; (5) no IVDS; (6) no ankylosis; (7) no other neurological abnormalities; and (8) no signs or symptoms of radiculopathy.  

The May 2016 VA examination report further notes the following: (a) May 2016 x-rays revealed mild degenerative osteoarthritic changes of the intervertebral disc space at L2/L3; (b) functional loss includes pain with motion and limitation of motion; (c) pain upon examination causing functional loss with all ranges of motion; (d) no evidence of pain with weight bearing; (e) objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, including tenderness to deep palpation at the lumbar paravertebral muscles; (f) no additional loss of function or range of motion after three repetitions; (g) additional contributing factors of disability including less movement than normal; interference with sitting; and interference with standing; (h) normal muscle strength, a normal reflex exam, a normal sensory exam, and a negative straight leg raising test; and (i) the Veteran’s low back disability inhibits his ability to work, including physical limitations on his prolonged standing and sitting.

In March 2018, the Veteran underwent his first VA spine examination during the period on appeal which culminated in a report diagnosing his low back disability as low back syndrome with degenerative arthritis of the spine including degenerative disc disease (DDD) at L2/L3.  The March 2018 VA examination report further notes the following: (1) the Veteran’s report of increased intermittent pain and stiffness, including increased pain with lifting heavy objects, bending, squatting, prolonged standing, prolonged walking, stair climbing, and moving from sitting to standing; (2) the Veteran’s report of flareups described as daily pain with prolonged standing and sitting lasting all day; (3) objective evidence of the Veteran’s limited range of motion, to include forward flexion limited to 40 degrees and a combined range of motion limited to 110 degrees; (4) the presence of guarding and muscle spasm of the thoracolumbar spine but neither result in abnormal gait or abnormal spinal contour; (5) no IVDS; (6) no ankylosis; (7) no other neurological abnormalities; and (8) no signs or symptoms of radiculopathy.  

The March 2018 VA examination report further notes the following: (a) x-rays revealed arthritis; (b) functional loss includes pain with motion and limitation of motion; (c) pain upon examination causing functional loss with all ranges of motion; (d) evidence of pain with weight bearing; (e) objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, including tenderness to deep palpation at the lumbar paravertebral muscles; (f) no additional loss of function or range of motion after three repetitions, and pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time or with flareups; (g) pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare-ups; (h) additional contributing factors of disability including interference with sitting; and interference with standing; (i) normal muscle strength, a normal reflex exam, a normal sensory exam, and a negative straight leg raising test; (j) regular use of a back brace for pain; (k) evidence of pain on passive range of motion testing; (l) evidence of pain when the joint is used in non-weight bearing; and (m) the Veteran’s low back disability inhibits his ability to work, including physical limitations on his prolonged standing and sitting.

In December 2018, the Veteran underwent his second VA spine examination during the period on appeal which culminated in a report diagnosing his low back disability as degenerative arthritis of the lumbar spine with IVDS.  The December 2018 VA examination report further notes the following: (1) the Veteran’s report of constant daily low back pain aggravated by prolonged sitting, standing, lying down, lifting, walking and “just about any physical activity;” (2) the Veteran’s report that he ambulates with the aid of a walker most of the time and wears a back brace during waking hours; (3) current treatment that includes the following: chiropractic care; weekly physical therapy; a TENS unit; ibuprofen; gabapentin; and Flexeril; (4) the Veteran’s report of flareups described as weekly pain due to prolonged standing and lifting with a loss of function due to pain and stiffness; (5) objective evidence of the Veteran’s limited range of motion, to include forward flexion limited to 45 degrees and a combined range of motion limited to 115 degrees; (6) the presence of guarding and muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour, including an antalgic gait aided by a roller walker; (7) IVDS without any incapacitating episodes involving a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months; (8) no ankylosis; (9) no other neurological abnormalities; and (10) no signs or symptoms of radiculopathy.  

The December 2018 VA examination report further notes the following: (a) x-rays revealed arthritis; (b) limitation of motion itself contributes to functional loss, including reduced mobility; (c) pain upon examination causing functional loss with all ranges of motion; (d) evidence of pain with weight bearing; (e) objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, including that the Veteran was “very tender over lower lumbar area;” (f) no additional loss of function or range of motion after three repetitions and no assessment of additional loss of function or range of motion during flareups as “[i]t would be speculative to provide accurate ROMs during a flare up or after rep use over time since this veteran is not having a flare up at the time of this exam. I can’t provide this information based on a hypothetical situation;” (g) additional contributing factors of disability include less movement than normal; disturbance of locomotion; interference with sitting; and interference with standing; (h) normal muscle strength, a normal reflex exam, a normal sensory exam, and a negative straight leg raising test; (i) regular use of a back brace and a walker; (j) evidence of pain on passive range of motion testing; (k) evidence of pain when the joint is used in non-weight bearing; and (l) the Veteran’s low back disability inhibits his ability to work, including any job requiring prolonged standing, sitting, walking or lifting.

In July 2020, the Veteran underwent a third VA examination during the period on appeal which culminated in a report diagnosing him with degenerative arthritis of the lumbar spine, spondylolisthesis, IVDS, and radiculopathy of the bilateral lower extremities.  The July 2020 VA examination report further indicates the following: (1) the Veteran’s report that his low back condition has continued to worsen and his current symptoms include the following: (a) constant pain with difficulty standing and sitting for long periods; (b) difficulty with ambulation; (c) flareups described as sharp pain in his back radiating to his legs; (d) muscle weakness; (e) an unsteady gait resulting in two falls during a two-week period; (f) frequent numbness and tingling in the toes and (g) loss of some bowel and bladder control, to include incontinence three to four times per day; (2) treatment with physical therapy and acupuncture therapy with very limited success in the past; (3) additional treatment with gabapentin, riboflavin, tizanidine, and rest; (4) objective evidence of the Veteran’s limited range of motion, to include forward flexion limited to 40 degrees and a combined range of motion limited to 145 degrees, unchanged after three repetitions; (5) the presence of guarding and muscle spasm of the thoracolumbar spine that do not result in either an abnormal gait or abnormal spinal contour, including an antalgic gait aided by a roller walker; (6) an ataxic gait due to knee pain; (7) IVDS without any incapacitating episodes involving a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months; and (8) no ankylosis.  

The July 2020 VA examination report further notes the following: (a) x-rays revealing arthritis; (b) functional loss that includes the following: pain; limitation of motion with flexion, extension, and lateral rotation; difficulty with bending and lifting; difficulty walking due to limited range of motion; and difficulty performing daily activities; (c) the Veteran’s report of “frequent shooting pain in both legs;” (d) the Veteran’s use of a walker to ambulate due to poor balance; (e) pain noted on exam on rest and non-movement with all ranges of motion; (f) objective evidence of pain with weight bearing and non-weight bearing; (g) passive range of motion testing cannot be performed or is not medically appropriate; (h) no objective evidence of localized tenderness or pain; (i) no additional loss of function or range of motion after three repetitions; (j) no additional loss of function or range of motion after three repetitions and pain, weakness, lack of endurance, incoordination significantly limit functional ability with repeated use over a period of time; (k) during flares, pain, weakness, incoordination significantly limit functional ability but do not result in additional loss of function or range of motion; (l) additional contributing factors of disability include weakened movement; disturbance of locomotion; interference with sitting; and interference with standing; (m) no muscle atrophy; (n) normal reflex exam, bilaterally; (o) reduced strength bilaterally, as follows: hip flexion: 4/5; knee extension: 4/5; ankle plantar flexion: 4/5; and ankle dorsiflexion: 4/5; (p) an abnormal sensory exam on the right side only, to include decreased sensation to light touch of the right feet and toes; (q) a positive straight leg test on the right side only (negative on the left side); (r) signs and symptoms of radiculopathy of the bilateral lower extremities, to include involvement of the femoral and sciatic nerves manifested as follows: (i) moderate constant pain, right side; (ii) mild constant pain, left side; (iii) moderate paresthesias, right side; (iv) mild paresthesias, left side; (v) moderate numbness, right side; (vi) mild numbness, left side; (s) the Veteran’s report that he takes gabapentin for parasthesias; (t) the Veteran’s report of his regular use of a back brace and constant use of a walker to provide support in standing and ambulation and to prevent falls due to his pain and weakness of the bilateral lower extremities; (u) the Veteran’s inability to stand, sit, or lift heavy objects due to constant back pain and weakness in his bilateral lower extremities which would make it difficult to perform required tasks at work; (v) the Veteran seems to have a great deal of difficulty managing simple physical tasks; (w) the Veteran is unable to sit for long periods and would not be able to do sedentary work; (x) the Veteran has had progressive loss of function and debility making it impossible to work; he needs assistance with all activities of daily living and physical activities; and (y) during the July 2020 examination, the Veteran was unable to bend to adjust his shoes even while sitting and needed help to remove and replace his shirt, thus indicating that “flexion and extension of the lumbar spine is definitely affected.”

The Board also notes that the Veteran has submitted the January 2020 lay statement of his former colleague (J.R.) which states that the Veteran “was always having issues with this back and in a lot of discomfort when we worked together.” J.R. further states that the Veteran was unable to stand or to walk for prolonged periods of time and that although the job required him to stand all day, “he had to sit often due to his back hurting.”

After careful review, and in consideration of the foregoing evidence, the Board hereby finds as follows: (1) for the period on appeal from October 30, 2017, to March 19, 2018, the severity of the Veteran’s service-connected low back disability does not warrant an increased evaluation in excess of 40 percent; (2) for the period on appeal from March 20, 2018, the severity of the Veteran’s service-connected low back disability does not warrant an increased evaluation in excess of 20 percent; (3) for the period on appeal from July 11, 2020, the Veteran’s service-connected low back disability warrants a separate evaluation of 20 percent under Diagnostic Code 8520 for moderate radiculopathy of the right lower extremity; and (4) for the period on appeal from July 11, 2020, the Veteran’s service-connected low back disability warrants a separate evaluation of 10 percent under Diagnostic Code 8520.  See Burton, 25 Vet. App. at 4-5 (2011); 38 C.F.R. §§ 4.71a, 4.124a (2020).  

The Board finds that the Veteran is competent to describe the observable, non-medical symptoms of his low back disability, such as the nature, severity, and location of his pain, numbness, tingling, and limited range of motion, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and that the Veteran’s lay statements regarding his low back and radiculopathy symptoms are credible because such statements have been consistent with each other and throughout the evidence of record.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted).  

For the period on appeal from October 30, 2017, to March 19, 2018, an evaluation in excess of 40 percent Diagnostic Code 5242 is not warranted as the evidence of record does not suggest, and the Veteran does not contend, that his low back disability manifests unfavorable ankylosis of the entire spine or entire thoracolumbar spine. As outlined above, the Veteran continued to have motion of the spine, although limited, and the evidence does not reflect that even considering pain and flare-ups that the condition more nearly approximated unfavorable ankylosis of the entire spine. 

For the period on appeal from March 20, 2018, an evaluation in excess of 20 percent under Diagnostic Code 5242-5243 is not warranted as the evidence of record does not suggest, and the Veteran does not contend, that his low back disability manifests forward flexion of the thoracolumbar spine 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. Rather, as outlined above, examinations have consistently reflected the Veteran had flexion of at least 40 degrees. Even when factoring in pain and flare-ups and the results of repetitive testing, the range of motion did not more nearly approximate flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

In addition, the Board finds that, for the entire period on appeal, the Veteran’s low back disability does not warrant an evaluation in excess of 20 percent under Diagnostic Codes 5242 or 5243, as even considering the impact of repetitive motion and flare-ups, none of the VA examiners found the Veteran’s low back range of motion to more nearly approximate limitation of forward flexion to 30 degrees, or to manifest favorable or unfavorable ankylosis.  See 38 C.F.R. § 4.71a (2020).  In addition, as outlined above, the Veteran has consistently retained forward flexion range of motion limited to 40 degrees or more. The Veteran was never noted to require bed rest prescribed by a physician for at least 2 weeks but fewer than 4 weeks during the past 12 months.

The Board has also considered whether the Veteran’s service-connected low back disability warrants a higher disability rating due to functional loss caused by pain, weakness, fatigability, incoordination, or pain on movement of a joint.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 37; DeLuca, 8 Vet. App. at 205-07.  However, the current evaluations for the Veteran’s service-connected low back disability under Diagnostic Codes 5242 and 5243 contemplate the impact of any complaints of pain, fatigue, swelling, weakness, or lack of endurance, and none of the VA examination reports found limitation of forward flexion limited to less than 30 degrees.  Thus, even considering the effect of pain, flareups, and repetitive motion, the Veteran’s low back functional limitation has never been found to manifest forward flexion limited to 30 degrees or favorable or unfavorable ankylosis.  Accordingly, the consideration of other functional limitation factors does not warrant evaluations in excess of the 40 percent and 20 percent evaluations currently assigned under Diagnostic Codes 5242 and 5243.  See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 205-07.

For the period on appeal prior to July 11, 2020, separate evaluations for radiculopathy is not warranted. The examiners during this period found no signs or symptoms of radiculopathy and objective testing, including reflex and sensory examinations, did not reflect radiculopathy. 

For the period beginning July 11, 2020, an evaluation of 20 percent for the right leg and 10 percent for the left leg is warranted based upon the reports of radiating pain to the extremities.  Ratings in excess of 20 percent under Diagnostic Code 8520 is not warranted as the Veteran’s reports of radiating pain into his right lower extremity indicate that such pain is moderate in nature, rather than severe. Similarly, an evaluation in excess of 10 percent under Diagnostic Code 8520 is not warranted as the Veteran’s reports of radiating pain into his left lower extremity indicate that such pain is mild in nature, rather than moderate or severe.  See 38 C.F.R. §§ 4.71a, 4.124a (2020).  

In addition, because the evidence of record includes X-ray evidence establishing that the Veteran’s low back disability manifests degenerative arthritis, the Board has also considered whether the Veteran’s low back disability is entitled to an increased evaluation under Diagnostic Code 5003-5242.  In this case, however, the Veteran’s condition is rated upon limitation of motion of the affected joint and therefore a separate rating under Diagnostic Code 5003 is not warranted.  see 38 C.F.R. § 4.14, See Esteban, 6 Vet. App. at 261-62.  

Finally, as noted above, a September 2020 rating decision granted the Veteran’s service connection claims for bowel and bladder disabilities as secondary to his service-connected low back disability; accordingly, as the Veteran has been awarded the maximum benefit sought for such claims, the issue of the Veteran’s bowel and bladder disabilities are no longer in appellate status before the Board.  See AB v. Brown, 6 Vet. App. 35, 39-40 (1993).  Accordingly, the Board finds that no additional separate evaluations for neurological abnormalities are warranted at this time.

The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).

Accordingly, and in consideration of the foregoing evidence, the Board hereby finds that for the period on appeal from July 11, 2020, the evidence of record is in relative equipoise as to whether the Veteran’s service-connected low back disability warrants a separate evaluation of 20 percent under Diagnostic Code 8520 for moderate radiculopathy of the right lower extremity, as well as a separate evaluation of 10 percent under Diagnostic Code 8520 for mild radiculopathy of the left lower extremity.  See Gilbert, 1 Vet. App. at 53-54; 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

However, the Board also finds that for the period on appeal from October 30, 2017, to March 19, 2018, the preponderance of the evidence of record weighs against the award of an evaluation in excess of 40 percent for the Veteran’s service-connected low back disability under Diagnostic Code 5242, as the Veteran’s low back disability does not more closely approximate the criteria required for a 50 percent evaluation.  In addition, the Board further finds that for the period on appeal from March 20, 2018, the preponderance of the evidence of record weighs against the award of an evaluation in excess of 20 percent under Diagnostic Code 5242-5243, as the Veteran’s low back disability does not more closely approximate the criteria required for a 40 percent evaluation.  Accordingly, because the preponderance of the evidence weighs against the award of any additional increased evaluations, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

5. For the entire period on appeal, a compensable evaluation under Diagnostic Code 7802 for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome secondary to his service-connected left wrist disability, is denied.

6. For the entire period on appeal, an increased evaluation in excess of 10 percent under Diagnostic Code 7804 for the Veteran’s service-connected scar disability, to include a left wrist scar status post repair of median and ulnar nerves and carpal tunnel syndrome secondary to his service-connected left wrist disability, is denied. 

In an April 2018 rating decision, the Veteran was awarded service connection for his left wrist scar as follows: (1) a zero percent evaluation under Diagnostic Code 7802, effective January 10, 2018; and (2) a 10 percent evaluation under Diagnostic Code 7804, effective January 10, 2018.

The Veteran contends, without elaborating, that his service-connected scar disability warrants an increased evaluation in excess of those currently assigned; however, after careful review and for the reasons set forth below, the Board disagrees. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. See 38 U.S.C. § 1155.  Not all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  See 38 C.F.R. §§ 3.321(a), 4.1, 4.21.  In every instance where the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.

Scar disabilities are evaluated under Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 evaluates scars or other disfigurements of the head, face, or neck.  Diagnostic Code 7801 evaluates scars that are not located on the head, face, or neck, but are associated with underlying soft tissue damage, with a minimum area of 6 square inches (39 square centimeters).  

Diagnostic Code 7802 evaluates scars that are not located on the head, face, or neck, that are not associated with underlying soft tissue damage, but that cover a minimum area of 144 square inches (929 square centimeters).  Note (1) provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body, and that the separate evaluations must be combined under Section 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.  See 38 C.F.R. § 4.118.

Diagnostic Code 7804 evaluates scars that are unstable or painful and provides as follows: (a) a 30 percent rating for five or more scars that are unstable or painful; (b) a 20 percent rating for three or four scars that are unstable or painful; and (c) a 10 percent rating for one or two scars that are unstable or painful.  See 38 C.F.R. § 4.118.  Note (1) defines an unstable scar as that which for any reason manifests frequent loss of covering of skin over the scar.  See id.  Note (2) provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars.  See id.  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.  See id.   

Diagnostic Code 7805 evaluates other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804, including any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code.

The Board notes that on July 13, 2018, VA issued a final rule amending its regulations governing skin disabilities, which had been in effect since 2008 (the 2008 Regulations).  The regulations amended in 2018 became effective on August 13, 2018 (the 2018 Regulations).  Therefore, claims filed on or after August 13, 2018, must be evaluated under the 2018 Regulations; however, claims pending prior to August 13, 2018, must be evaluated under both the 2008 Regulations and the 2018 Regulations, and the most favorable set of criteria must be applied to the claims on appeal.  See 83 Fed. Reg. 32592-32601 (July 13, 2018).  Because the Veteran’s claim for an increased evaluation for his service-connected scar disability was not pending prior to August 13, 2018, his claims must be evaluated pursuant only to the 2018 Regulations.

As stated above, the Veteran’s service-connected scar disability has been evaluated under Diagnostic Codes 7802 and 7804 as follows: (1) a zero percent evaluation under Diagnostic Code 7802, effective January 10, 2018; and (2) a 10 percent evaluation under Diagnostic Code 7804, effective January 10, 2018. 

In December 2018, the Veteran was afforded a VA scar examination which culminated in a report diagnosing the Veteran with a post-surgical scar on the left wrist.  The December 2018 VA examination report further noted as follows: (1) the Veteran’s left wrist scar is described as a well-healed post-surgical scar from the palmar aspect of the wrist to the palm, measured 9.0 centimeters by 1.7 centimeters, with an approximate total area of 15.3 centimeters or 6 inches squared; (2) the Veteran’s scar is very tender to light touch but is stable; (3) the Veteran underwent left wrist surgery for carpal tunnel median nerve release and flexor tenosynovectomy in September 2018; (4) the Veteran reports that he is still experiencing scar pain and swelling which is impairing his dexterity; (5) the Veteran reports that he is treating his pain associated with “various problems” with motrin and gabapentin; (6) in November 2019, the Veteran received a local injection of lidocaine with kenalog to reduce his inflammation and pain, which succeeded in temporarily relieving his pain; (7) the Veteran reports that his left wrist scar pain is severe enough to keep him awake at night; and (8) the Veteran’s condition will impact any job requiring repetitive use of the left hand.

The December 2018 VA examination report further noted the Veteran’s left wrist scar was not due to burns, was not unstable with frequent loss of covering of skin, was not associated with underlying tissue damage, and did not result in limitation of function or motion.  The December 2018 VA examination report also did not indicate the presence of any of the following: loss of underlying tissue; other pertinent physical findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage) associated with any scar; disfigurement of the head, face, or neck; or limitation of function.  

Based upon the finding that the Veteran’s scar disability involves one or two scars that are painful, the Veteran was awarded a 10 percent evaluation under Diagnostic Code 7804 for his service-connected scar disability.  See 38 C.F.R. § 4.118.

In addition, based upon the finding that the Veteran’s scar was not unstable, associated with any underlying tissue damage, measured as 144 square inches or greater, or causing any functional impairment, the Veteran was also awarded a noncompensable rating under Diagnostic Code 7802 for his service-connected scar disability.  See 38 C.F.R. § 4.31.

The Board finds that the opinion of the December 2018 VA examiner carries significant probative weight as it was authored by a VA examiner who possessed the necessary education, training, and expertise to provide the requested opinion and was based upon an in-person examination of the Veteran.  See 38 C.F.R. § 3.159(a)(2); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). 

Accordingly, in light of the foregoing, including the findings of the December 2018 VA examination report that the Veteran’s scar is not unstable, is not associated with underlying tissue damage, does not measure 144 square inches, and does not cause functional impairment, the Board hereby finds that the preponderance of the evidence of record weighs against a finding that the Veteran’s service-connected scar disability warrants a compensable rating under Diagnostic Code 7802, see 38 C.F.R. § 4.31, or an evaluation in excess of 10 percent under Diagnostic Code 7804.  See 38 C.F.R. § 4.118.  Therefore, the benefit of the doubt doctrine does not apply in this case, and the Veteran’s claim for an increased evaluation for his service-connected scar disability must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  

7. A total disability rating based upon individual employability (TDIU) on a schedular basis due to the Veteran’s service-connected disabilities is granted.

The Veteran contends that his service-connected disabilities have rendered him unemployable since December 15, 2017.  For the reasons set forth below, the Board agrees that the Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment since January 1, 2018, as the Veteran’s application for Social Security Administration (SSA) benefits indicate he was employed from August 2007 through December 31, 2017. 

Where a veteran’s schedular rating has been evaluated at less than 100 percent, total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or to follow a substantially gainful occupation as a result of one or more service-connected disabilities and without regard to advancing age or any nonservice-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a).  Under 38 C.F.R. § 4.16(a), a determination concerning unemployability must be made on the basis of service-connected disabilities alone; nonservice-connected disabilities must be disregarded.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Even if the record contains evidence that a veteran’s unemployability is a result of other nonservice-connected factors such as age or nonservice-connected conditions, a finding must still be made, without regard to the nonservice-connected conditions, as to whether the veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable.  See id.  The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered.  See 38 C.F.R. § 4.16(b).

Total disability will be considered to exist when there is any impairment of mind or body which is sufficient to render it impossible for the average person to secure or to follow a substantially gainful occupation.  See 38 C.F.R. § 4.15.  While the rating is based primarily upon the average impairment of earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability.  See id.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  See 38 C.F.R. § 4.16(a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991).  The ability to work only a few hours a day or only sporadically does not qualify as an ability to engage in substantially gainful employment. See id. Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  See 38 C.F.R. § 4.16(a).  Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop.  See id.  Consideration must be given in all claims to the nature of the employment and the reason for termination.  See id.  

Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU; specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more.  See 38 C.F.R. § 4.16(a).  If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the other disabilities sufficient to bring the combined rating to 70 percent or more.  See id.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in combat action; or (5) multiple disabilities incurred as a prisoner of war.  See 38 C.F.R. § 4.16(a)(4).  The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.  See id.  

The Veteran is currently in receipt of the following evaluations: (1) a 70 percent evaluation for an acquired psychiatric disability, effective September 11, 2013; (2) a 20 percent evaluation for low back disability, effective October 15, 2018; (3) a 60 percent evaluation for a bowel disability, as secondary to his service-connected low back disability, effective April 4, 2019; (4) a 60 percent evaluation for a bladder disability, as secondary to his service-connected low back disability, effective April 4, 2019; (5) a 20 percent evaluation for radiculopathy of the right lower extremity, effective July 11, 2020; (6) a 10 percent evaluation for radiculopathy of the left lower extremity, effective July 11, 2020; (7) a 30 percent evaluation for a left wrist disability, effective November 1, 2018; (8) a 10 percent evaluation for a scar of the left wrist, effective January 1, 2018; (9) a noncompensable evaluation for a scar of the left wrist, effective January 1, 2018; and (10) a noncompensable evaluation for bilateral hearing loss, effective September 11, 2013.  The Board also notes that the Veteran’s combined evaluation for compensation has totaled 90 percent from September 11, 2013, 100 percent from September 19, 2018, 90 percent from November 1, 2018, and 100 percent from April 4, 2019.  

Accordingly, the Veteran has met the schedular rating criteria for a TDIU under Section 4.16(a)(4) since September 11, 2013, and the Board must consider whether the Veteran’s service-connected disabilities render him unable to secure and to follow substantially gainful employment.

Although the Veteran has been awarded a 100 percent disability evaluation for a portion of the period on appeal, the Board notes that such an award does not always render the issue of TDIU moot, as VA’s duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent.  See Bradley, 22 Vet. App. at 294.  In addition, although a 100 percent evaluation has been awarded for a portion of the period on appeal, the Veteran’s TDIU claim remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356, 359-61 (2018), citing Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

After careful review, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure and to follow substantially gainful employment, and a TDIU is therefore warranted in this case.

In February 2020, the Veteran underwent an interview with a private physician (Dr. M.B.) which culminated in a report (the February 2020 Dr. M.B. Report) opining, the Veteran’s service-connected conditions have rendered him unable to maintain substantially gainful employment since at least January 10, 2018, based upon the following: (1) he is unable to stand, walk, sit, or stoop for periods longer than two hours at a time; (2) he is unable to lift or to carry more than 10 pounds consistently; (3) on average, he would be required to leave early three or more days per month; (4) he would need more than one additional break per day aside from normally scheduled morning, lunch, and afternoon breaks; (5) for more than three days per month, he would not stay focused for at least seven hours of an eight-hour work day; (6) he suffers from severe pain, limited mobility, and medication side effects; and (7) he suffers from physical and mental limitations. 

Dr. M.B. further detailed the February 2020 interview during which the Veteran reported the following: (1) he worked as a customs officer from 2001 to 2017; (2) his position required a lot of standing and sitting, both of which were difficult for him due to his pain; (3) he would arrive to work in the morning already in pain, and by the time he left work to travel home, his pain was intolerable; (4) once he arrived at home, he was unable to do anything other than lie down; (5) he spent his evenings after work icing his back, using a massager, and using a TENS unit; and (6) he was unable to assist with household chores, hobbies, or other activities and spent all of his time recuperating from work. 

The Veteran also reported to Dr. M.B. that he had quite a few conflicts at work with supervisors and co-workers and believed they were mean or unfair to him, and in response, he determined he should avoid everyone so that he would not react to others in anger.  He further reported that he neither wants nor has friends, and he continues to feel this way.  He reported to Dr. M.B. that he decided to retire early because he had no quality of life, and he thought that he would have more time with his family.  However, he continues to suffer from constant severe pain and cannot walk more than one or two blocks, stand for more than a few minutes or sit for more than 20 minutes without severe pain.  He reports spending most of his time in his recliner with his legs elevated or lying down, as there are the only two positions that provide any relief.  He stays home and rarely ever leaves due to his pain and his lack of interest in being around others, and he reported that he always feels depressed, angry, irritable, and tired, as he suffers from chronic sleep impairment due to pain and nightmares.  As a result, he is fatigued during the day and takes daily naps.    

In light of the foregoing evidence provided by the Veteran, as well as Dr. M.B.’s review of the Veteran’s claims file and medical treatment records, the February 2020 Dr. M.B. Report concludes that the Veteran’s service-connected conditions have rendered him unable to maintain substantially gainful employment since at least January 10, 2018. 

In February 2020, the Veteran underwent an additional interview with a private physician (Dr. K.B.) which culminated in a report (the February 2020 Dr. K.B. Report) finding it more likely than not that the Veteran’s service-connected acquired psychiatric disability “prevents him from maintaining substantially gainful employment since the date of his claim, January 10, 2019.  This condition impacts his employability due to impairments in interpersonal relations, low motivation, mood dysregulation, and poor sleep.”  The February 2020 Dr. K.B. Report further finds as follows: 

[the Veteran’s] [r]e-experiencing symptoms would reduce his productivity, due to his inability to focus on work tasks.  They could also contribute to increased work absences.  Avoidance symptoms would interfere with [the Veteran’s] ability to interact appropriately with the environment and peers in a workplace setting.  Arousal and reactivity symptoms would make [the Veteran] more reactive to normal workplace stressor and interpersonal conflicts.  Finally, negative thoughts and feelings would contribute to an increased risk for suicidal thoughts, and ongoing depressive symptoms that would decrease his work productivity. 

The February 2020 Dr. K.B. Report also notes that the January 2020 lay statement submitted by the Veteran’s former co-worker (J.R.) (the January 2020 Statement) confirms that the Veteran struggled with his interpersonal relationships at work, and that he did not “handle stress well on top of work having to work with the pain and limitations” caused by his service-connected low back and left wrist disabilities.  As a result, the Veteran presented as “standoffish” and did not attend groups or gatherings, avoided activities and functions due to his physical issues, and felt like he was different from others.  The January 2020 Statement further notes that the Veteran’s “medical condition affected his happiness and concentration,” his “energy was low,” and his “interactions with others were minimal.”

In addition, the competent medical evidence of record, including an April 2020 psychiatric Disability Benefits Questionnaire completed by Dr. K.B., also demonstrates that the Veteran suffers from psychiatric symptoms that result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, to include the following: depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; impairment of short and long term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  

In light of the foregoing, the Board finds that the evidence of record is in relative equipoise regarding whether the Veteran’s service-connected disabilities have rendered him unemployable, including the Veteran’s competent lay statements regarding the reasons for his retirement, as well as competent medical evidence regarding the Veteran’s current physical impairments caused by his service-connected disabilities.  The competent medical evidence of record has consistently demonstrated that the Veteran suffers from debilitating low back pain, and has difficulty walking, standing, or sitting for prolonged periods as well as difficulty lifting or carrying more than ten pounds.  The December 2018 VA spine examination report concludes that the Veteran’s service-connected low back disability will impact “any job requiring prolonged standing, sitting, walking or lifting,” and the July 2020 VA spine examination report concludes that the Veteran’s constant low back pain and weakness in his legs result in his inability to stand, sit, or lift heavy objects, making it difficult for him to perform required tasks at work.

Moreover, the Board notes that the Veteran’s SSA records indicate his report of the following: (1) he completed one year of college courses; (2) he was employed as a customs officer from August 2001 to December 2017; (3) he is no longer able to complete his duties as a result of his service-connected disabilities and his difficulty with walking, sitting, standing, and lifting.  Therefore, the Board finds that the Veteran’s minimal transferable skills have limited his ability to transition into other occupations, as his past employment has centered upon physical labor rather than office-based work.

Accordingly, in light of the evidence of record reflecting that the Veteran’s unemployment during the period on appeal is the result of the manifestations of his service-connected disabilities, considering the evidence indicating that the Veteran has been unable to obtain or maintain substantially gainful employment, and given the medical evidence reflecting that his sustained unemployment is related to his service-connected symptoms, the Board finds that, resolving all reasonable doubt in the Veteran’s favor, a TDIU is warranted from January 1, 2018.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert, 1 Vet. App. 49, 55.

8. The appeal for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence has been withdrawn.

In April 2020, prior to the promulgation of a decision in the instant appeal, the Veteran’s representative submitted a written request to withdraw the Veteran’s formal appeal for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed, and an appeal may be withdrawn by the appellant or by his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.204 (2020). 

In order to be effective, a withdrawal of an appeal must be received by the Board prior to the issuance of a decision regarding the claims being withdrawn and must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn.  See 38 C.F.R. § 20.204(b).  In addition, an effective withdrawal of claims must be explicit, unambiguous, and accomplished with a full understanding of the consequences of such action.  See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). 

In this case, the Board finds the Veteran’s April 2020 notice of withdrawal to be effective as it contains the information required by VA regulations, and it expressly and unambiguously communicates the Veteran’s intention to withdraw his claim for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence, thereby indicating a full understanding of the consequences of such action.

Accordingly, because the Veteran has withdrawn the appeal of his pending claim for an extension of the award for total temporary disability based upon surgical or other treatment necessitating convalescence, and no allegations of errors of fact or law remain pending for appellate consideration, the Board lacks jurisdiction over such claim; therefore, it must be dismissed.  See 38 U.S.C. § 7105.

9. The appeal for an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss has been withdrawn.

In April 2020, prior to the promulgation of a decision in the instant appeal, the Veteran’s representative submitted a written request to withdraw the Veteran’s formal appeal for an increased compensable evaluation for the Veteran’s service-connected bilateral hearing loss.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed, and an appeal may be withdrawn by the appellant or by his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.204 (2020). 

In order to be effective, a withdrawal of an appeal must be received by the Board prior to the issuance of a decision regarding the claims being withdrawn and must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn.  See 38 C.F.R. § 20.204(b).  In addition, an effective withdrawal of claims must be explicit, unambiguous, and accomplished with a full understanding of the consequences of such action.  See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). 

In this case, the Board finds the Veteran’s April 2020 notice of withdrawal to be effective as it contains the information required by VA regulations, and it expressly and unambiguously communicates the Veteran’s intention to withdraw his claim for an increased compensable evaluation for his service-connected bilateral hearing loss, thereby indicating a full understanding of the consequences of such action.

Accordingly, because the Veteran has withdrawn the appeal of his pending claim for an increased compensable evaluation for his service-connected bilateral hearing loss, and no allegations of errors of fact or law remain pending for appellate consideration, the Board lacks jurisdiction over such claim; therefore, it must be dismissed.  See 38 U.S.C. § 7105.

REASONS FOR REMAND

1. Entitlement to an increased evaluation in excess of 30 percent for the Veteran’s service-connected left wrist disability, to include peripheral neuropathy status post repair of median, ulnar nerves, diagnosed as carpal tunnel syndrome and flexion tendon due to laceration, is remanded.

Unfortunately, the Veteran’s claim for an increased evaluation for his service-connected left wrist disability, to include peripheral neuropathy status post repair of median, ulnar nerves, diagnosed as carpal tunnel syndrome and flexion tendon due to laceration, must be remanded for further development.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.

In April 1996, the Veteran was awarded service connection for his left wrist disability and was assigned an initial evaluation of 10 percent, effective October 07, 1995.  Subsequently, the Veteran was assigned the following increased evaluations for his service-connected left wrist disability: (1) a 20 percent evaluation, effective September 11, 2013; (2) a 30 percent evaluation, effective January 10, 2018; (3) a total temporary evaluation of 100 percent from September 19, 2018; and (4) a 30 percent evaluation under Diagnostic Code 8513, effective November 1, 2018, for moderate incomplete paralysis, left median nerve.

The Veteran contends that his service-connected left wrist disability warrants an increased evaluation, as his symptoms have worsened since his last examination. 

Diagnostic Code 8513 governs radiculopathy of the upper extremities and provides as follows: (1) complete paralysis of the major upper extremity warrants a 90 percent evaluation; (2) complete paralysis of the minor upper extremity warrants a 80 percent evaluation; (3) incomplete severe paralysis of the major upper extremity warrants a 70 percent evaluation; (4) incomplete severe paralysis of the minor upper extremity warrants a 60 percent evaluation; (5) incomplete moderate paralysis of the major upper extremity warrants a 40 percent evaluation; (6) incomplete moderate paralysis of the major upper extremity warrants a 30 percent evaluation; and (7) incomplete mild paralysis of the major or minor upper extremity warrants a 20 percent evaluation.  See 38 C.F.R. § 4.124a (2020).

The Veteran was most recently afforded a VA examination in December 2018 to assess the severity of his service-connected left wrist disability, which culminated in a report diagnosing the Veteran with peripheral neuropathy status post left median nerve carpal release for carpal tunnel syndrome (CTS) and finding as follows: (1) the veteran underwent a left median nerve release for CTS and had a median nerve neuroma resected (incidental finding during surgery); (2) he completed post-op physical therapy but is still having severe scar and left wrist and hand pain with some swelling over the scar area; (3) the Veteran’s left wrist condition impacts his manual dexterity and his ability to perform his activities of daily living such as dressing, bathing, and sleeping; (4) the Veteran reports paresthesia in the form of electrical shocks upon light touch of the first, second, third, and radial side of the fourth digits; (5) his sensation is significantly reduced over the volar aspect of the left wrist; and (6) he is taking gabapentin and now wearing a wrist brace at all time.  

However, while the December 2018 VA examination report noted that the Veteran’s left wrist disability manifests moderate incomplete paralysis of the median nerve, the report failed to address whether the Veteran’s ulnar nerve also manifests moderate or mild incomplete paralysis, which is required for an increased evaluation under Diagnostic Code 8513.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Accordingly, as all required testing has not been completed, remand for a new medical examination is necessary to determine the severity of the Veteran’s service-connected left wrist disability and to obtain the evidence necessary to adjudicate his claim.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

2. Entitlement to an extension of special monthly compensation (SMC) based on housebound criteria beyond November 1, 2018, is remanded. 

Unfortunately, the Veteran’s claim for SMC based upon the need for aid and attendance or housebound status must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.

The Veteran contends that he is entitled to an award of SMC based on housebound criteria beyond November 1, 2018.  However, the Board cannot make a fully informed decision on the issue of SMC because no VA examiner has opined as to the extent of the Veteran’s need for aid and attendance or the extent to which his service-connected disabilities meet the housebound criteria.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Accordingly, a VA examination is necessary to determine whether the Veteran has a current need for regular aid and attendance and whether that need is causally related to his service-connected disabilities.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Accordingly, these matters are REMANDED for the following action:

1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file.  The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records.  If any records sought are not obtained, a written statement to that effect should be incorporated into the record.

2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of the Veteran’s service-connected left wrist disability.  The entire claims folder should be made available and reviewed by the examiner.  All indicated studies should be performed and all findings should be reported in detail. 

The examiner must address whether the Veteran’s left wrist disability manifests complete or incomplete paralysis of the median and ulnar nerves and indicate whether such paralysis is severe, moderate, or mild. 

The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate.

3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA Aid and Attendance examination. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. 

The examiner is requested to provide the following information:

(a) Whether it is at least as likely as not that the Veteran’s service-connected disabilities result in any functional impairment, whether mental or physical, requiring the aid and attendance of another person to assist with any of the following on a regular basis: (i) dressing and undressing himself; (ii) keeping himself ordinarily clean and presentable; (iii) feeding himself; (iv) attending to the wants of nature; (v) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the service-connected disability cannot be done without aid; or (vi) protecting himself from hazards or dangers incident to his daily environment due to a physical or mental incapacity.

(b) If the Veteran requires assistance with any of the above activities of daily living, the examiner should comment upon the frequency and duration of such need. Responses to the above should not merely be stated as “yes” or “no,” but rather should include details elicited from the Veteran concerning any such limitation and identification by the examiner of which service-connected disability or disabilities result in such limitation, and how. 

If the Veteran requires assistance with any of the above due to a nonservice-connected disability, the examiner should so state and identify the nonservice-connected disability. 

(c) Do his service-connected disabilities require that he remain in bed?

(d) Is he substantially confined to his dwelling and the immediate premises, and if so, is it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime?

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	H. Marsdale

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.