Citation Nr: 21006074
Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 04-28 652
DATE: February 3, 2021

ORDER

From August 16, 1996 to May 22, 2017, an initial 40 percent disability rating, but no higher, for post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is granted.

On and after May 23, 2017, entitlement to an initial disability rating in excess of 40 percent for post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is denied.

From August 16, 1996 to October 28, 2013, entitlement to a total disability rating (TDIU), on the basis of substitution, is granted.

From October 29, 2013 to January 22, 2015, entitlement to a TDIU, on the basis of substitution, is dismissed as moot.

Entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral eye disability (claimed as bilateral blindness) as a result of cataract surgeries performed at VA in December 2009 and September 2013, on the basis of substitution, is denied.

REMANDED

Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic obstructive pulmonary disease (COPD) and/or post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

Entitlement to service connection for a bilateral elbow disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

Entitlement to service connection for a bilateral hand disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

Entitlement to service connection for a bilateral eye disorder (claimed as bilateral eye blindness), on the basis of substitution, is remanded.

FINDINGS OF FACT

1.  From August 16, 1996 to May 22, 2017, the Veteran’s post discectomy degenerative joint disease of the lumbar spine was manifested by severe lumbosacral strain with marked limitation of forward bending in the standing position; but not intervertebral disc syndrome, unfavorable ankylosis of the entire thoracolumbar spine, or complete bony fixation of the spine.

2.  On and after May 23, 2017, the Veteran’s discectomy degenerative joint disease of the lumbar spine was manifested by forward flexion of the lumbar spine to 30 degrees or less; but not incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months, unfavorable ankylosis of the entire thoracolumbar spine, or complete bony fixation of the spine.

3.  From August 16, 1996 to October 28, 2013, the evidence of record shows that the Veteran’s service-connected COPD and post discectomy degenerative joint disease of the lumbar spine prevented him from securing or following substantially gainful employment.

4.  From October 29, 2013 to January 22, 2015, the Veteran was in receipt of a 100 percent schedular rating for COPD, and the Veteran's TDIU award is not predicated on one service-connected disability; there is no longer a case or controversy with respect to the issue of entitlement to a TDIU during this period.

5.  The Veteran did not have additional bilateral eye disability that was caused by cataract surgeries performed at VA in December 2009 and September 2013.

CONCLUSIONS OF LAW

1.  From August 16, 1996 to May 22, 2017, the criteria for entitlement to an initial 40 percent disability for post discectomy degenerative joint disease of the lumbar spine, but no higher, on the basis of substitution, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5295 (effective prior to September 23, 2002).

2.  On and after May 23, 2017, the criteria for entitlement to an initial disability rating greater than 40 percent for post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5010-5242.

3.  From August 16, 1996 to October 28, 2013, the criteria for entitlement to TDIU, on the basis of substitution, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.59, 3.340, 3.41, 4.1, 4.3, 4.16.

4.  From October 29, 2013 to January 22, 2015, the issue of entitlement to a TDIU, on the basis of substitution, is dismissed as moot.  38 U.S.C. § 7104; 38 C.F.R. § 20.104.

5.   The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral eye disability (claimed as bilateral blindness) as a result of cataract surgeries performed at VA in December 2009 and September 2013, on the basis of substitution, have not been met.  38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Navy from July 1955 to June 1959.  The Veteran died in December 2019, and the appellant is his surviving spouse.  A July 2020 letter reflects that she has been accepted as the Veteran's substitute for purposes of processing his appeal to completion.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010

As an initial matter, the Board expresses its condolences to the appellant for the loss of her husband and recognized the years of valuable service he provided to the United States during his service in the Navy.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in October 2003, December 2007, April 2015, and April 2017.

The Board notes that the Board first remanded the Veteran’s initial increased rating claim for his lumbar spine disability in a January 2007 Board decision.  In a subsequent August 2009 decision, the Board denied the claim.  The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court).  In a March 2011 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion to Vacate in Part and Remand.  The Board subsequently remanded the issue in a December 2011 decision.  The Board also remanded the Veteran’s service connection claim for sleep apnea for the issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  The Board remanded the increased rating claim again in an April 2017 decision in addition to the issue of entitlement to TDIU prior to October 29, 2013. 

In a separate March 2018 decision, the Board remanded the issue of entitlement to service connection for arthritis of the shoulders, hips, elbows, and hands.  The Board also denied the Veteran's service connection claim for sleep apnea.  The Veteran appealed that determination to the Court.  In an October 2018 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand.  In a subsequent May 2019 decision, the Board remanded the service connection claim for sleep apnea.

Regarding the issues decided herein, the Board finds that the AOJ substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions).

The record shows that in January 2005, the Veteran testified at a Board hearing before a Veterans Law Judge that addressed his increased rating claim for his lumbar spine disability.  A transcript from that proceeding is associated with the claims file.  A December 2008 letter later notified the Veteran that the Veterans Law Judge who conducted the January 2005 Board hearing was no longer employed by the Board.  The letter advised the Veteran of his right to request another hearing.  In January 2009, the Veteran responded that he did not wish to appear at a hearing.  A similar notification letter was later sent to the appellant in July 2020, and the appellant responded in July 2020 that she did not want another Board hearing.  The record also shows that the Veteran requested a Board hearing in a VA Form 9 submitted in December 2014 and February 2016.  However, the Veteran and his representative later stated that he would be unable to attend any hearing due to his declining health.  See November 2017 statement with cover page from representative.  In addition, the appellant's representative again stated that she did not want a hearing in a December 2020 statement.  In light of this evidence, the Board finds that there are no outstanding Board hearing requests.

During the pendency of the appeal, a September 2017 Decision Review Officer (DRO) decision increased the disability rating for the Veteran’s lumbar spine disability to 40 percent, granted service connection for loss of use of both feet as secondary to the lumbar spine disability with an assigned rating of 100 percent, and granted special monthly compensation (SMC) based on loss of use of both feet.  Each of the awards was effective from May 23, 2017.  Regarding the Veteran’s increased rating claim for his lumbar spine disability, as the assigned evaluations are less than the maximum available rating, the issue remained on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

The Board notes that Veteran’s representative later stated in an August 2019 statement that the Veteran continued to seek entitlement to an increased rating for his lumbar spine disability, to include entitlement to an increased rating and earlier effective date for his loss of use of both feet associated with the lumbar spine disability.  Although the representative did not specify whether he was referring to the service connection or SMC grant, a subsequent December 2020 statement from the representative indicates that the representative was identifying the grant of service connection.  However, the Veteran did not file any notice of disagreement for the rating or effective date for the grant of service connection for loss of use of both feet within one year of the September 2017 DRO decision.  As such, these issues are not before the Board.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned); see also Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (holding that once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed decision).

The Board also notes that during the appeal period, a December 2014 rating decision awarded an increased rating of 100 percent for the Veteran's COPD effective from October 29, 2013.  In the rating codesheet for this decision, the AOJ noted that the Veteran’s claim for a TDIU was moot on and after October 29, 2013 in light of his receipt of a schedular 100 percent rating during this period.  However, the Board notes that a 100 percent disability rating does not necessarily render the issue of TDIU moot.  In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114(s).  Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, 22 Vet. App. at 293-94.  Under Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  See id.  However, the Veteran was already in receipt of SMC at the housebound rate pursuant to 38 U.S.C. § 1114(s) from January 23, 2015 to May 29, 2015.  On and after May 29, 2015, the Veteran was also awarded SMC based on the aid and attendance criteria pursuant to 38 U.S.C. § 1114(l).  The Board notes that this award is a greater benefit than SMC pursuant to 38 U.S.C. § 1114(s).  As such, only the period prior to January 23, 2015 remains on appeal.

The Board also notes that although the representative characterized the claims on appeal as claims on the basis of accrued benefits in a December 2020 statement, it is clear that the representative did not intend to waive the appellant’s right to substitute given that the representative simultaneously submitted a new December 2020 TDIU Vocational Assessment Report to be considered in connection with these claims.  In this regard, the Board notes that a claim for accrued benefits must be adjudicated on the basis of the evidence of record at the date of the Veteran's death.  38 C.F.R. § 3.1000.  As such, the Board will proceed to adjudicate the claims on appeal on the basis of substitution.  The Board notes that with the submission of new evidence in December 2020, the representative included a waiver of the AOJ’s initial consideration of this additional evidence.  To the extent that an additional December 2019 VA examination and medical opinion related to the Veteran’s eyes was obtained after the August 2019 supplemental statement of the case (SSOC) that addressed the Veteran’s increased rating claim for his lumbar spine disability and TDIU claim; the Board notes that these records are not relevant to those claims.  Although VA treatment records dated from January 2018 to July 2019 were also later associated with the claims file in August 2019, these records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the Veteran's increased rating claim for a lumbar spine disorder or claim for a TDIU prior to January 23, 2015.  As such, the Board finds that a remand for initial AOJ review of this evidence in relation these claims is not necessary, and there is no prejudice to the appellant in proceeding with the adjudication of the claim.  See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board notes that the AOJ adjudicated the Veteran’s claim for service connection claim for a bilateral eye disorder as well as his claim for compensation under 38 U.S.C. § 1151 for additional bilateral eye disability as a result of cataract surgeries performed at VA in December 2009 and September 2013, as one issue in the November 2019 statement of the case.  Although the Board finds that the claim for compensation under 38 U.S.C. § 1151 can be finally adjudicated, the service connection claim requires additional development.  Therefore, the Board finds that it is appropriate to bifurcate the issues and adjudicate them separately.  See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) ("[b]ifurcation of a claim is generally within the Secretary's discretion"); see also Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions).  

As noted above, the Board previously remanded the single issue of entitlement to service connection for arthritis of the shoulders, hips, elbows, and hands.  Given that this claim encompasses several distinct joints, the Board also finds it appropriate to bifurcate the claim into four separate issues.

Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1.  Entitlement to an initial disability rating for post discectomy degenerative joint disease of the lumbar spine in excess of 20 percent prior to May 23, 2017, and in excess of 40 percent on or after May 23, 2017, on the basis of substitution.

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. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder.  38 U.S.C. § 1155.  The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary in order for a rating to accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  It is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Such separate disability ratings are known as staged ratings.

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.  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.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to the absence of part, or all, of the necessary bones, joints, and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

During the appeal period, the Veteran was assigned an initial 20 percent rating for his lumbar spine disability effective from August 16, 1996 to May 22, 2017.  On and after May 23, 2017, the Veteran was in receipt of a 40 percent rating.  Prior to May 23, 2017, the Veteran's disability was rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.  On and after May 23, 2017, the Veteran’s disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242.  See March 2019 DRO Decision, March 2019 Rating Codesheet.  Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code and the disability is rated by analogy.  38 C.F.R. § 4.27.

The Board notes that the rating criteria for evaluating spine disabilities were amended in September 2002 and September 2003.  See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulations specifically provides otherwise.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective date of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran's service-connected lumbar spine disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would accord him the highest rating.  Thus, the September 2002 amendments may only be applied after September 2002; likewise, the September 2003 amendments may only be applied after September 2003.

Diagnostic Code 5293, effective prior to September 23, 2002, provided disability ratings for intervertebral disc syndrome (IVDS).  Postoperative IVDS that was cured warranted a 0 percent rating.  Mild IVDS merited a 10 percent rating. Moderate IVDS with recurring attacks warranted a 20 percent rating.  Severe IVDS manifested by recurring attacks with intermittent relief warranted a 40 percent rating.  Pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief, warranted a 60 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (prior to September 23, 2002).

Effective September 23, 2002, Diagnostic Code 5293 (later renumbered and amended as present Diagnostic Code 5243 effective September 26, 2003), was amended to provide for evaluation of IVDS on the total duration of incapacitating episodes over the last 12 months.  67 Fed. Reg. 54345-01 (August 22, 2002); 68 Fed. Reg. 51545-58 (Aug. 27, 2003); 69 Fed. Reg. 32499-01 (June 10, 2004) (correcting omission of Notes 1 and 2).  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks during the past 12 months.  A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months.  A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months.  A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).  If intervertebral disc syndrome 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation of that segment.  Id., Note (2).

Diagnostic Code 5289, effective prior to September 26, 2003, provided that favorable ankylosis of the lumbar spine should be awarded a 40 percent rating. Unfavorable ankylosis of the lumbar spine merited a 50 percent rating.

Diagnostic Code 5295, effective prior to September 26, 2003, contemplated lumbosacral strain and Diagnostic Code 5294 represented a sacroiliac injury and weakness.  The rating criteria for both diagnostic codes provided that a noncompensable rating was warranted for slight subjective symptoms only.  A 10 percent rating was appropriate for characteristic pain on motion.  A 20 percent rating contemplated muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  A 40 percent rating was awarded for severe lumbosacral strain or sacroiliac injury and weakness with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a (2002).

Under Diagnostic code 5292, effective prior to September 26, 2003, provided that limitation of motion of the lumbar spine was awarded a 10 percent rating when there was slight limitation.  A moderate limitation was awarded a 20 percent rating.  A severe limitation was awarded a 40 percent rating.

Diagnostic Code 5286, effective prior to September 26, 2003, provided that a spine with complete bony fixation (ankylosis) of a favorable angle warranted a 60 percent rating.  An unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) warranted a 100 percent rating.

Under Diagnostic Code 5285, effective prior to September 26, 2003, residuals of a fracture of the vertebra were awarded a 60 percent rating without cord involvement; abnormal mobility requiring a neck brace (jury mast).  A 100 percent rating was appropriate with cord involvement, bedridden, or requiring long leg braces.

The words "slight," "moderate," and "severe," as used in various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the ends that its decision is "equitable and just."  38 C.F.R. § 4.6 (2002, 2015).

Effective September 26, 2003, Diagnostic Codes 5237 and 5242 indicates that lumbosacral or cervical strain should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  Under the General Rating Formula, 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, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebrale body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula, Note (1).

For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation.  38 C.F.R. § 4.71a, General Rating Formal, Note (2) and Plate V.

Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees always represents favorable ankylosis).  See 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

The Board notes that the amendments did not affect the rating criteria concerning arthritis.  Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by x-ray findings should be rated as degenerative arthritis.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or minor joint groups, will warrant a rating of 10 percent; x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, will warrant a 20 percent rating.  For the purpose of rating a disability from arthritis, the lumbar vertebrae are considered a group of minor joints, ratable on a parity with major joints.  38 C.F.R. § 4.45(f).

In a July 1995 letter, Dr. M. noted that the Veteran had been his patient since 1962 when Dr. M. treated him for COPD and degenerative back disease until Dr. M. retired in 1994.  During this interval, the Veteran had continually declined in health.

In February 2000, a VA treatment record noted that the Veteran had chronic low back pain.  He walked without assistance, and the assessment was chronic low back pain.

The Veteran was provided with a VA examination to evaluate his lumbar spine disability in July 2000.  The examiner noted the Veteran's report that after he injured his back during service, he underwent surgery in 1974 to remove the L4-L5; and his back had been sore since that time.  The report stated that he had been totally disabled since 1973.  He reported current symptoms of pain, weakness, stiffness, fatigability, and a lack of endurance.  He also experienced flare ups if he drove in a car for too long.  The report noted "15%" in relation to flare ups, suggesting a proportional worsening of symptoms.  The Veteran treated his symptoms by taking Motrin 2 to 3 times a day.  At the time of the examination, he was not using crutches, a brace, or a cane.

Range of motion testing showed that the lumbar spine had 27 degrees of flexion to the right, and 34 degrees of flexion to the left.  Forward flexion was 60 degrees, and backward extension was 22 degrees.  The examiner stated that motion stopped when pain began, and there was objective evidence of painful motion, spasm, weakness, and tenderness.  Postural abnormalities were present as he was flexed forward 12 degrees.  The examiner observed that it was very difficult for him to get in and out of a chair as he walked with a decrepit limp.  An examination of his neurological functioning showed that his deep tendon reflexes were extremely hyperactive and equal.  A 10 centimeter lumbar scar was present.  The diagnosis was post discectomy degenerative joint disease of the lumbar spine with loss of function due to pain.

In July 2001, an additional VA examination related to the lumbar spine was conducted.  The Veteran complained of symptoms of pain, weakness, fatigability, and a lack of endurance.  He continued to take Motrin 2 to 3 times a day.  He experienced periods of flare ups when he was sleeping, and the examiner indicated that he experienced 10 percent of an additional functional impairment during these events.  He used a cane occasionally, but he did not have one with him during the examination.  

Range of motion testing showed that the lumbar spine had flexion to the right of 24 degrees and flexion to the left of 10 degrees.  Forward flexion was 50 degrees, and backward extension was 12 degrees.  The examiner noted that motion stopped when pain began.  There was evidence of painful muscle spasm, weakness, and tenderness.  The examiner reported that the Veteran got in and out of his chair very slowly and cautiously, and he had a very decrepit gait.  An examination for neurological abnormalities showed that his deep tendon reflexes were hyperactive and equal.  In terms of postural abnormalities, the Veteran was flexed forward 3 degrees.  There was also a 10-centimeter scar in the lumbosacral area.  X-rays showed degenerative changes at L5-S1.  The diagnosis was post-diskectomy L4 and 5 with loss of function due to pain.

In September 2001, a VA treatment record noted that the Veteran's chronic low back pain was unchanged.  A subsequent March 2002 record stated a physical examination of the Veteran's back showed that the posterior thorax was symmetric, and he had full range of motion with a well-healed scar at the lumbar area.  The Veteran denied muscle weakness or paralysis.  The assessment was degenerative joint disease.  In January 2003, a functional screen revealed that the Veteran was independent.  The Veteran's degenerative joint disease was noted to be well-controlled with ibuprofen.  

During a subsequent September 2003 VA examination for the lumbar spine, the examiner noted that the Veteran had been on Social Security Administration (SSA) disability since having two lumbar discs removed in 1974.  The examiner indicated that the Veteran performed construction work until 1974.  He currently complained of pain, weakness, stiffness, fatigability, and a lack of endurance.  The Veteran had been given pain pills and Motrin, and Motrin was his main medication at that time.  In contrast to previous examination reports, the examiner stated that the Veteran had no periods of flare ups as his back hurt all the time.  He currently used a cane, but he did not use a back brace.

Range of motion testing showed that the lumbar spine had flexion to the right of 20 degrees and flexion to the left of 12 degrees.  Forward flexion was 62 degrees, and backward extension was 18 degrees.  Motion stopped where the pain began.  There was marked evidence of painful motion, spasm, weakness, and tenderness.  The examiner observed that the Veteran got in and out of a chair with difficulty and walked very feebly with a cane.  Regarding postural abnormalities, the Veteran was noted to be flexed forward 14 degrees.  Musculature of the back was satisfactory, and an 11-centimeter surgical scar was noted.  The Veteran's deep tendon reflexes were 2+, active, and equal.  The diagnosis was post-diskectomy degenerative joint disease of the lumbosacral spine with loss of function due to pain.

In October 2003, a VA treatment record noted that the Veteran current problem list showed lumbosacral spondylosis without myelopathy status post discectomy L4-5/L5-S1/decompression in 1974 manifested by chronic lumbar pain/stiffness.  The record added that there was no current radiculopathy.  There was no radicular pain, weakness, or incontinence.  Lumbar active range of motion was limited to 50 degrees, and extension was limited to 10 degrees.  The Veteran ambulated quite stiffly with a cane.  There was no focal vertebral spinous process tenderness, and no crepitus.  The neurological exam showed that the deep tendon reflexes were symmetrical, and the record indicated that the sensation was intact in the lower extremities with no gross motor deficits, atrophy, or significant focal findings.  The straight left raising test was negative on the right and mildly positive at 80 degrees on the left.  The diagnosis noted in this record was unchanged in March 2004 and January 2006.  

In January 2006, a VA treatment record again noted that there was no recent radicular pain, weakness, or incontinence.  The Veteran had adequate control of his lumbar pain on salsalate twice a day and tramadol/acetaminophen as needed occasionally for breakthrough.  The Veteran was noted to experience joint pain and morning stiffness.  An examination of the thorax showed symmetrical expansion and no deformity, tenderness, or crepitus.  The back/spine showed no focal vertebral spinous process tenderness or crepitus.  Lumbar active range of motion was limited.  The straight leg raising test was positive for radicular burning dysesthesias at 70 degrees on the left, and negative at 90 degrees on the right.

An additional VA examination related to the lumbar spine was conducted in March 2007.  The Veteran reported having chronic pain in his low back and intermittent, radiating pain into his thighs down to his knees.  His current treatment consisted of salsalate, tramadol, and acetaminophen with tramadol.  The response to this treatment had been good with no side effects.  

Testing revealed that on active range of motion, the Veteran had 0 to 40 degrees of forward flexion with the same range of pain.  Passive forward flexion was 0 to 45 degrees with a pain range of 20 to 45 degrees.  The examiner reported that there was loss of range of motion with repetitive use testing due to pain but noted that the forward flexion was 0 to 40 degrees with such testing.  Active range of motion extension was 0 to 6 degrees with the same range of pain.  Passive extension was 0 to 10 degrees with a pain range of 6 to 10 degrees.  Left lateral flexion was 0 to 8 degrees on active range of motion testing with the same range of pain; and passive range of motion was 0 to 12 degrees with the same range of pain.  Right lateral flexion was 0 to 12 degrees on active and passive range of motion with the same range of pain.  Left lateral flexion was 0 to 14 degrees on active motion with the same range of pain; and passive motion was 0 to 18 degrees with a pain range of 10 to 18 degrees.  Right lateral rotation was 0 to 10 degrees on active and passive motion with the same range of pain.  There was no loss of range of motion with repetitive use testing on extension, left or right lateral flexion, or left or right lateral rotation.  The examiner remarked that the Veteran was very histrionic with much grimacing, grunting, and guarding with all range of motion attempts.  Although he would only try one set of repetitions, it was evident that some of his range of motion loss was from disuse.  The examiner also reported that the Lasègue’s sign was not positive, and there was no vertebral fracture.  Lumbosacral and thoracic spine x-rays noted in the impressions that the lower lumbar spine degenerative change had progressed, an abdominal aortic aneurysm appeared to be radiographically unchanged; and scoliosis was present with associated mild degenerative changes. 

The examiner stated that there was no history of fatigue, weakness, or spasms.  There was a history of decreased motion, stiffness, and pain in the lumbar area.  The pain was severe, chronic, and unremitting; manifested by a deep, burning ache.  The pain radiating to the thighs and knees with a deep, burning ache.  However, there were no flare ups of the Veteran's spinal condition.  In addition, the examiner noted that it was not an examination for invertebral disc syndrome.  The Veteran used a cane and brace, and the examiner stated that he was unable to walk for more than a few yards.  The examination of the thoracolumbar sacrospinalis did not show objective evidence of spasm, atrophy, or weakness.  There was left and right guarding, pain with motion, and tenderness.  The symptoms were not severe enough to result in an abnormal gait or spinal contour.  The Veteran's spine was noted to be stopped with a symmetrical appearance and normal head position. Lumbar flattening was present, and his gait was antalgic.  There was no evidence of gibbus, kyphosis, list, lumbar lordosis, scoliosis, or reverse lordosis.  The examiner reported that there was no thoracolumbar spine ankylosis.  The examiner additionally noted that there was no cervical spine ankylosis.

A detailed motor examination showed active movement against some resistance (4 out of 5) in the bilateral hip flexion, hip extension, and knee extension.  Active movement against full resistance (5 out of 5) was shown in the bilateral ankle dorsiflexion, ankle plantar flexion, and great toe extension.  The Veteran's muscle tone was normal and without atrophy.  A detailed sensory examination of the lower extremities produced normal (2 out of 2) results bilaterally for vibration, light touch, and position sense testing.  The examiner stated that there was no abnormal sensation on the right or left.  A detailed reflex examination yielded hypoactive (1+) findings for the left abdominal and bilateral knee jerk.  Reflexes were absent (0) for the bilateral ankle jerk.   

There was evidence of urinary urgency and nocturia, but no urinary or fecal incontinence.  However, the etiology of these symptoms was noted to be unrelated to the Veteran's lumbar spine disability and the examiner indicated that the symptoms were instead attributable to an enlarged prostate.  There was also no evidence of obstipation, erectile dysfunction, numbness, paresthesias, or leg or foot weakness.  In addition, the Veteran did not have a history of falls, unsteadiness, visual dysfunction, or dizziness.  

The diagnoses were degenerative arthrosis and degenerative disc disease of the lumbar spine; and degenerative disc disease of the thoracic spine.  The problem associated with the diagnosis was chronic low back pain.  The lumbar spine disability had no effect of the Veteran's daily grooming or toileting; a mild effect on his ability to shop, travel, feed, and dress; a moderate effect on reaction; a severe effect on exercise; and the disability prevented him from engaging in sports.  Similar effects were noted for the thoracic spine diagnosis except for a mild effect on recreation, and no effect on traveling.  The examiner noted that the Veteran's usual occupation had been a truck driver, but he had not been employed for more than 20 years as a result of his chronic back disability.

In a separate examination report related to peripheral neuropathy, the examiner repeated several of the above findings and summarized that the Veteran had grossly equal motor function of both lower extremities that a 4 out of 5 bilaterally, representative of disuse weakness.  There were no tremors, tics, or other abnormal movements.  In addition, no function of any joint was affected by a nerve disorder.  The examiner noted that the Veteran had an antalgic gait related to his back injury, but a normal Romberg's test and no Babinski sign.  The examiner stated that there was no evidence of peripheral neuropathy found on the examination.

Another VA examination for the Veteran's lumbar spine disability was conducted in April 2012.  The diagnoses were degenerative arthrosis and degenerative disc disease.  The examiner noted that the Veteran was unsure why he was there again.  He had no new complaints or problems.  The examiner also noted that the Veteran did not report having flare ups that impacted the function of his thoracolumbar spine.  With range of motion testing, the Veteran had 55 degrees of forward flexion with painful motion beginning at 50 degrees; 0 degrees of extension with no objective evidence of painful motion; 15 degrees of right lateral flexion with objective evidence of painful motion at 0 degrees; 15 degrees of left lateral flexion with objective evidence of painful motion at 5 degrees; 5 degrees of right lateral rotation with objective evidence of painful motion at 0 degrees; and 10 degrees of left lateral rotation with objective evidence of painful motion at 0 degrees.  The Veteran was unable to perform more than one useable repetitive use range of motion attempt due to balance problems.

The examiner reported that the Veteran did not have additional limitation in range of motion after repetitive use testing.  The Veteran did have functional loss and/or impairment in the form of pain on movement and interference with sitting, standing, and/or weight-bearing.  The Veteran was also tender to palpation of the paraspinals bilaterally.  Muscle strength testing showed that there was normal strength (5 out of 5) in the bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe flexion.  No muscle atrophy was present.  The reflex examination showed that the Veteran had normal (2+) reflexes in the bilateral knees, and absent (0) reflexes in the ankles.  Sensory testing produced normal findings in the bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes.  The straight leg raising test was negative on the right, and no findings were noted on the left.  The examiner stated that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy.  In addition, there were no other neurologic abnormalities or findings related to the thoracolumbar spine (such as bowel or bladder problems/pathologic reflexes).  The Veteran also did not have intervertebral disc syndrome of the thoracolumbar spine.

In terms of assistive devices, the Veteran used a cane on a constant basis.  The examiner determined that there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  The examiner noted that the Veteran did have a scar related to his lumbar spine diagnoses, but it was not painful and/or unstable; and it did not have a total area greater than 39 square centimeters.  The examiner remarked that the x-ray re-evaluation from the examination was essentially unchanged from the previous examination in 2007.  There were no other pertinent physical findings, signs, or symptoms.  The examiner opined that the Veteran's thoracolumbar spine disability did not impact his ability to work.

In February 2015, the Veteran attended a VA examination for his lumbar spine disability.  The diagnosis was lumbosacral strain.  The Veteran informed the examiner that he could barely stand for more than a few minutes, he was unable to bend or twist, and he could not walk for more than a few feet.  After noting these reports, the examiner also noted that the Veteran had severe COPD.  The Veteran did not report having flare ups that impacted the function of his thoracolumbar spine.  Range of motion testing showed that the Veteran had 60 degrees of forward flexion; and 0 degrees of extension, right and left lateral flexion, and right and left lateral rotation.  The range of motion itself did not contribute to functional loss.  Although pain was noted on examination with forward flexion, it did not result in functional loss.  Pain was present with weight bearing, and the Veteran was generally tender to palpation of the lumbar area.  

The Veteran did not perform repetitive use testing with at least three repetitions.  The examiner stated that the Veteran was able to attempt only forward flexion with support.  He had too much unsteadiness and general weakness (COPD) to attempt further range of motion evaluation.  The Veteran was not being examined immediately after repetitive use over time, but the examination supported the Veteran's statements describing functional loss with repetitive use over time.  The examiner stated that due to lack of information, he was unable to determine without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time.  The examiner also noted that the examination was not being conducted during a flare up, and the Veteran did not report flare ups.  The examiner reported that the Veteran had guarding, but it did not result in an abnormal gait or abnormal spinal contour.  Regarding additional factors contributing to disability, the examiner selected the categories of less movement than normal due to ankylosis, adhesions, etc.; disturbance of locomotion, and interference with standing.  However, the examiner separately clarified that there was no ankylosis of the spine.

Muscle strength testing showed normal strength (5 out of 5) in the right hip flexion and right knee extension, and active movement against some resistance (4 out of 5) in the left hip flexion and left knee extension.  Normal strength was present in the bilateral ankle flexion, ankle dorsiflexion, and great toe extension.  There was no muscle atrophy.  There were normal (2+) reflex examination findings in the bilateral knees, and hypoactive (1+) reflex findings in the bilateral ankles.  The sensory examination results were normal bilaterally in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes.  The Veteran was unable to perform the straight leg raising test on the left or right.  The examiner determined that he did not have radicular pain or any other signs or symptoms due to radiculopathy.  There were also no other neurologic abnormalities or findings related to a thoracolumbar spine disability (such as bowel or bladder problems/pathologic reflexes).  In addition, the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine.  Regarding assistive devices, the Veteran constantly used a wheelchair and cane.  The examiner stated that these assistive devices were due to complaints of low back pain and generalized weakness related to oxygen-dependent COPD.

The examiner also found that due to a thoracolumbar spine condition, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  The examiner added that there were no other pertinent findings, complications, conditions, signs, or symptoms related to the Veteran's lumbar spine diagnosis.  Although the Veteran had a scar related to his lumbar spine disability, it was not painful or unstable, it did not have a total area equal to or greater than 39 square centimeters, and it was not located on the head, face, or neck.  Arthritis was documented on imaging studies, and the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height.  There were no other significant diagnostic test findings and/or results.  The examiner opined that the Veteran's thoracolumbar spine disability did not impact his ability to work.  The examiner remarked that he had been unable to perform the Goldthwaite's maneuver due to the inability of the Veteran to lie supine (COPD, low back pain).

In a May 2015 Examination for Housebound Statue or Permanent Need for Regular Aid and Attendance, the provider noted that the Veteran had an antalgic gait with a cane.  The provider noted that the lumbar spine had a limited active range of motion without noting any specific range of motion findings.

On May 23, 2017, the Veteran was afforded a VA examination for his lumbar spine disability.  The diagnosis was intervertebral disc syndrome status post discectomy with degenerative arthritis of the spine.  The examiner stated that the Veteran had constant, unrelenting low back pain as well as radicular pain in both lower extremities which was worse and intolerable with standing even a minute or two, or with walking a few feet.  The Veteran did not report having flare ups of the thoracolumbar spine.  He did report having functional loss or impairment in that he was unable to walk more than four feet, stand for two minutes, or lift any objects.  He was also unable to change his position to lying down due to inability to rise as a result of his back pain as well as end-stage lung disease.

Upon range of motion testing, the Veteran had 20 to 20 degrees of forward flexion, and 20 to 0 degrees of extension.  He had 0 to 5 degrees of right and left lateral flexion, and 0 to 10 degrees of right and left lateral rotation.  In response to the prompt from the examination report for the examiner to provide a description if range motion was outside of normal range, but was normal for the Veteran (for reasons other than a back condition, such as age body habits, neurologic disease), the examiner stated that the Veteran was unable to extend at all.  His posture was fixed in 20 degrees of flexion due to severe back pain.  Range of motion itself contributed to functional loss as the Veteran was unable to bend at all or stand straight.  Pain was noted on examination in each plane of motion, and it caused functional loss.  There was also evidence of pain with weight bearing, and the Veteran was tender to palpation of the lumbar spine.  The examiner stated that the Veteran's severe back pain at rest made repetitive use testing with at least three repetitions impossible.  The examiner noted that the Veteran was not being examined immediately after repetitive use over time, and he was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time.  The examiner noted that as previously described, the Veteran was not able to perform repeated use.  Guarding was present, and it resulted in the Veteran's inability to straighten from 20 degrees of flexion.  The chosen additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc.; weakened movement due to muscle or peripheral nerve injury, etc.; instability of station; disturbance of locomotion; interference with sitting; and interference with standing.  However, the examiner specifically found that the Veteran did not have ankylosis of the spine.

With muscle strength testing, the right hip flexion and right knee extension demonstrated active movement against some resistance (4 out of 5), while the left hip flexion and left knee extension demonstrated active movement against gravity (3 out of 5).  The bilateral ankle plantar flexion, ankle dorsiflexion, and great toe extension showed active movement against some resistance.  There continued to be no muscle atrophy.  Testing of the Veteran's reflexes showed hypoactive (1+) reflexes in the bilateral knees and ankles.  The sensory examination showed normal findings on the right, and decreased findings on the left, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes.  The examiner was unable to perform the straight leg raising test on the right or left.  Signs or symptoms of radiculopathy included mild constant pain in the right lower extremity, moderate constant pain in the left lower extremity; moderate intermittent pain in the right lower extremity, and severe intermittent pain in the left lower extremity; mild paresthesias and/or dysesthesias in the right lower extremity, and moderate paresthesias and/or dysesthesias in the left lower extremity; and mild numbness in the right lower extremity, and moderate numbness in the left lower extremity.  There were no other signs or symptoms of radiculopathy.  The sciatic nerve was involved with a severity that was moderate on the right and severe on the left.  

There were no other neurologic abnormalities or findings related to the thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes).  The examiner added that although the Veteran did have intervertebral disc syndrome of the thoracolumbar spine, he had not experienced any episodes of acute signs and symptoms due to the disorder that required bed rest prescribed by a physician and/or treatment by the physician in the past 12 months.  The Veteran's assistive devices included constant use of a wheelchair and cane.  He used a cane for the few steps he could walk, and a wheelchair most of the time.  The examiner opined that due to the thoracolumbar spine disability, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to any condition listed in the diagnosis section of the report.  Although the Veteran did have a scar related to his lumbar spine disability, it was not painful, unstable, it did not have a total area equal to or greater than 39 square centimeters (6 square inches), and it was not located on the head, face, or neck.  The scar was located on the lumbar spine and measured 6 centimeters long and 0.2 centimeters wide.  

As noted in previous examination reports, the examiner stated that imaging studies of the thoracolumbar spine showed arthritis.  The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height.  There were no other significant diagnostic test findings and/or results.  The examiner opined that the Veteran's thoracolumbar spine disability did impact his ability to work.  The examiner stated that the Veteran was unable to walk a few steps which made it impossible to walk from spot to spot to get to a place of work, rise from a chair, or travel to the bathroom.  He was also unable to bend to pick up work or anything from the floor.  The examiner concluded that the Veteran's unrelating pain made employment not feasible and interrupted concertation to the extent that it would interfere with the cognition necessary for work performance.

In December 2018, a VA treatment record reported that the Veteran denied having radicular pain, myoparesis, or incontinence.  An examination of the back/spine showed no costovertebral angle tenderness; vertebral spinous process percussion tenderness, or crepitus.  A lumbar median scar was noted, and the record stated that the Veteran's lumbar active range of motion was limited without noting specific findings.  

In reviewing the above evidence, the Board first notes that the VA examinations from this period have reported that the Veteran did not have a vertebral fracture.  See March 2007 VA examination; February 2015 VA examination, May 2017 VA examination.  Consequently, a higher rating under Diagnostic Code 5285 effective prior to September 26, 2003 Is not warranted.

The Board next notes that the VA examinations from the appeal period prior to May 23, 2017 consistently reported that the Veteran did not have intervertebral disc syndrome.  See April 2012 VA examination; February 2015 VA examination.  Thus, a higher rating under Diagnostic Code 5293 effective prior to September 23, 2002 for intervertebral disc syndrome is not warranted.  A higher rating under Diagnostic Code 5293 effective September 23, 2002 (later renumbered and amended as present Diagnostic Code 5243 effective September 26, 2003), based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is also not appropriate given these facts.

In addition, once intervertebral disc syndrome was found during the May 23, 2017 VA examination, the examiner reported that the Veteran had not experienced any episodes of acute signs and symptoms due to the disorder that required bed rest prescribed by a physician and/or treatment by the physician in the past 12 months.  As such, a higher 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes based on incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is not justified.  The Board notes that Diagnostic Code 5293 prior to September 23, 2002 provided for a 60 percent rating for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief.  Although the examiner indicated that the Veteran had persistent symptoms compatible with sciatic neuropathy in both lower extremities, there was no muscle spasm of the thoracolumbar spine during the examination.  The Veteran’s reflexes in his bilateral knees and ankles were also noted to be hypoactive rather than absent.  While the examiner noted other signs and symptoms of radiculopathy, the September 2017 rating decision shows that the AOJ granted service connection for loss of use both feet and awarded a 100 percent rating effective from May 23, 2017 based on the May 2017 VA examiner's findings reflecting that the Veteran had severe radiculopathy in both lower extremities making ambulation without a wheelchair impossible.  As the Veteran’s symptoms of sciatic radiculopathy in the bilateral lower extremities are already contemplated by this 100 percent rating, the Board finds that the award of a 60 percent rating under Diagnostic Code 5293 based in part on the same symptoms of radiculopathy would constitute impermissible pyramiding.  38 C.F.R. § 4.14.  Consequently, a higher rating under Diagnostic Code 5293 is not warranted.

Prior to May 23, 2017, the Board finds that a 40 percent rating is warranted under Diagnostic Code 5295, effective prior to September 26, 2003.  38 U.S.C. § 5107(b).  As noted above, this diagnostic code contemplated lumbosacral strain and provided a 40 percent rating for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  The February 2015 VA examination noted a diagnosis of lumbar strain dating back to the 1970’s.  The Board notes that the rating criteria did not specifically define a degree of limitation of motion associated with marked limitation of forward bending in the standing position.  Notably, however, the September 2003 VA examiner stated that the examination findings which included 62 degrees of forward flexion constituted marked evidence of painful motion.  In addition, the available range of motion findings from this period reflect that the Veteran’s forward flexion has either been consistent with, or worse than, this degree of forward flexion throughout the appeal period prior to May 23, 2017; with 60 degrees noted during the July 2000 VA examination, 50 degrees noted during the July 2001 VA examination, 40 degrees noted during the March 2007 VA examination, 55 degrees noted during the April 2012 VA examination, and 60 degrees noted during the February 2015 VA examination.  The Board consequently finds that the findings from this period more nearly approximated severe lumbosacral strain with marked limitation of forward bending in the standing position.  As noted above, the rating criteria for Diagnostic Code 5295 and Diagnostic Code 5294 were the same prior to September 26, 2003.  As such a separate rating under Diagnostic Code 5294 was not warranted.  See 38 C.F.R. § 4.14. 

In addition, the 40 percent rating under Diagnostic Code 5295 cannot continue on and after May 23, 2017 as the Veteran is already in receipt of a 40 percent rating under Diagnostic Code 5242 during this period.  As the 40 percent rating under Diagnostic Code 5242 contemplates the Veteran’s limitation in forward flexion of the lumbar spine, a separate rating under Diagnostic Code 5295 on and after May 23, 2017 under Diagnostic Code 5295 for this limitation of motion would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14.  For these same reasons, a separate rating under Diagnostic Code 5292 effective prior to September 26, 2003 for limitation of motion of the lumbar spine is not warranted at any point during the appeal period.

In light of the findings of arthritis in the lumbar spine during this period, the Board has evaluated whether a higher or separate rating is available under Diagnostic Code 5003 at any time during the appeal period. 38 C.F.R. § 4.71a.  However, 20 percent is the maximum available rating under Diagnostic Code 5003.  In addition, the Veteran's disability ratings during this period contemplate his limitation of motion.  Diagnostic Code 5003 does not allow for a separate rating based on arthritis of a joint when a compensable rating has already been assigned under a diagnostic code related to limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also 38 C.F.R. § 4.14.  Accordingly, no higher or separate rating is warranted pursuant to Diagnostic Code 5003.

The Board additionally notes that a rating higher than 40 percent is not warranted at any point during the appeal period as the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine or that the Veteran’s spine was accompanied by complete bony fixation (ankylosis) of a favorable angle.  See Diagnostic Code 5289 (effective prior to September 26, 2003), Diagnostic Code 5286 (effective prior to September 26, 2003), Diagnostic Codes 5237 and 5242, General Rating Formula for Diseases and Injuries of the Spine (effective September 26, 2003). 

The Board has considered the findings that the Veteran was flexed forward 12 degrees during the July 2000 VA examination, 3 degrees during the July 2001 VA examination, and 14 degrees during the September 2003 VA examination.  The Board has also considered the February 2015 VA examiner’s finding that the Veteran had 0 degrees of extension; and the May 2017 VA examiner's remark concerning the thoracolumbar spine range of motion findings showing forward flexion of 20 to 20 degrees and extension of 20 to 0 degrees that the Veteran was unable to extend at all, and his posture was fixed in 20 degrees of flexion due to severe back pain.  However, the examiner did not indicate that there was complete bony fixation of the entire spine.  Moreover, the March 2007 VA examiner specifically determined that there was no thoracolumbar spine ankylosis; and both the February 2015 and May 2017 VA examiners agreed that there was no ankylosis of the spine.  Thus, overall, there is no indication of unfavorable ankylosis of the entire thoracolumbar spine or complete bony fixation of the spine.  The Veteran complained of pain and other functional limitations, but the current 40 percent rating throughout the appeal period fully contemplates all functional loss, including during flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59.

Furthermore, there is no basis to assign a disability rating higher than 40 percent.  Although the VA examinations may not contain all the necessary findings to evaluate the Veteran's loss of function, including on weight bearing and during flare-ups, a higher rating cannot be assigned regardless of these findings absent ankylosis.  See 38 C.F.R. § 4.71a, DC 5237; see also Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).  Accordingly, a remand to obtain a retrospective VA medical opinion pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), and Correia v. McDonald, 28 Vet. App. 158, 168 (2016) in terms of any examination findings from the appeal period is unnecessary.

The Board has further considered whether a separate evaluation for a neurological abnormality is warranted.  The Board has considered that findings from the appeal period that the Veteran had hyperactive deep tendon reflexes during the July 2000 and July 2001 VA examinations, and he was noted to walk with a limp.  However, the Veteran reflexes were later found to be equal during the September 2003 VA examination.  In addition, the Veteran was noted to have radicular burning dysesthesias on the left in January 2006, he reported having radiating pain from his back to his lower extremities during the March 2007 VA examination, and he had abnormal findings bilaterally during the March 2007 reflex examination of his bilateral knees and ankles.  The record also reflects that his bilateral ankle reflexes were absent at the time of the February 2012 VA examination, and hypoactive at the time of the February 2015 VA examination.  However, the VA examinations from the period prior to May 23, 2017 repeatedly determined that the Veteran did not have peripheral neuropathy and/or any radicular pain or any other signs or symptoms of radiculopathy.  See March 2007 VA examination, April 2012 VA examination, February 2015 VA examination.

Moreover, although symptoms of radiculopathy in the bilateral lower extremity were later found during the May 23, 2017 VA examination, the AOJ has already awarded a separate 100 percent disability rating for loss of use of both feet based on the symptoms of the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy that were noted in the May 2017 VA examination report.  As noted above, this disability rating and the assigned affective date are not currently on appeal.  In addition, the record does not reflect that the Veteran had any other objective neurologic abnormalities associated with his service-connected lumbar spine disability.  The VA examiners in April 2012, February 2015, and May 2017 also determined that there was no additional neurological impairment associated with the Veteran's lumbar spine disability, such as bowel/bladder problems or pathologic reflexes.  Thus, a separate disability rating on this basis is not warranted.

The record also raises the issue of whether a separate evaluation is warranted for a scar associated with the Veteran's lumbar spine disability.  The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities.  83 Fed. Reg. 32592 (July 13, 2018).  The effective date of the final rule is August 13, 2018.  However, for this final rule, VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.  For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran filed his initial increased rating claim for his lumbar spine disability before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran.

Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017).  The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804."  38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018).

The pre-amended Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2017).  In contrast, the amended Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (August 13, 2018).  Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters).  A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters).  A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters).  A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater.   38 C.F.R. § 4.118, Diagnostic 7801.

Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage.

Prior to August 13, 2018, Diagnostic Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear.  38 C.F.R. § 4.118, Diagnostic 7802 (2017).  The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (August 13, 2018).  Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater.

Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful.  A 10 percent rating for is assigned for one or two such scars.  A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars.  Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars.  Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118, Diagnostic 7804.  

However, the VA examination reports from this period indicated that the Veteran had a surgical scar located in the lumbar spine area of his back, and its size was noted to be 10 centimeters, 11 centimeters, and 6 centimeters long by 0.2 centimeters wide.  See July 200 VA examination, July 2001 VA examination, September 2003 VA examination, and May 2017 VA examination.  The scar was described as well-healed in a March 2002 VA treatment record.  In addition, the findings from the April 2012, February 2015, and May 2017 VA examinations reflect that the Veteran’s relevant scar was not painful or unstable, and it did not have a total area equal to or greater than 39 square centimeters (6 square inches).  No other disabling effects were indicated.  Thus, the evidence of record from this appeal period does not reflect that the Veteran had scars of the severity and/or size to warrant a separate compensable rating under the rating criteria pertaining to scars under either the old or new criteria.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805.  As such, a separate rating for the Veteran's relevant scar is not appropriate in this case.

Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that an initial disability rating in excess of 40 percent is appropriate for the Veteran's lumbar spine disability; therefore, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

2.  Entitlement to a TDIU prior to January 23, 2015, on the basis of substitution.

As discussed above, the Board must consider whether an award of TDIU is warranted prior to January 23, 2015 during the earlier portion of the appeal period for the Veteran’s initial increased rating claim for his lumbar spine disability on appeal.  As service connection for this disability was awarded effective from August 16, 1996, the current appeal period for the TDIU claim also begins on that date.  See Rice, 22 Vet. App. at 453; see also Harper v. Wilkie, 30 Vet. App. 356 (2018) (determining that the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal).

The regulations that were in effect from August 16, 1996 to June 2, 1999 regarding entitlement to a TDIU were similar to those currently in effect.  During this period, 38 C.F.R. § 4.16(a) provided that total disability ratings for compensation may have been assigned, where the schedular rating was less than total, when the disabled person was, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability. This was so, provided that if there was only one such disability, the disability shall have been ratable at 60 percent or more, and that, if there were two or more disabilities, there shall have been at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  It was provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status would be disregarded where the percentages referred to in the paragraph for the service-connected disability or disabilities were met and in the judgment of the rating agency such service-connected disabilities rendered the veteran unemployable.  See 38 C.F.R. § 4.16(a) (1993).

In addition to TDIU on a schedular basis, the regulations provided that it was the established policy of VA that all veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, it was provided that an extraschedular basis could be considered for cases of veterans who were unemployable by reason of service-connected disabilities, but who failed to meet the percentages of 4.16(a).  Employment history, educational and vocational attainment, and other factors could have a bearing on the issue.  See 38 C.F.R. § 4.16(b) (1993).

During the portion of the appeal period prior to November 7, 1996, the regulations included 38 C.F.R. § 4.16(c).  The subsection stated that the provisions of 4.16(a) were not for application in cases in which the only compensable service-connected disability was a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation.  In such cases, the mental disorder would be assigned a 100 percent schedular evaluation under the appropriate diagnostic code.  See 38 C.F.R. § 4.16(c) (1989).  Effective November 7, 1996, section 4.16(c) was removed.  As noted above, the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007).  VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

During the appeal period prior to January 23, 2015, the Veteran was in receipt of a 30 percent rating for COPD prior to October 29, 2013, and a 100 percent rating thereafter.  In light of the Board’s above decision, the Veteran was also in receipt of a 40 percent rating for his lumbar spine disability for the entire period on appeal.  The combined disability rating was 60 percent prior to October 29, 2013, and 100 percent thereafter.  See 38 C.F.R. § 4.25.

Consequently, the Veteran's service-connected disabilities did not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation prior to October 29, 2013.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Accordingly, the question becomes whether entitlement to a TDIU on an extraschedular basis is warranted.  

In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration.  Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration."  Id.

However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment.

Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance.  See Wages v. McDonald, 27 Vet. App. 233, 239-40 (2015) (Kasold, J., concurring).  The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations.  this contention is rejected." Id. at 5. (emphasis added).  Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.").  Id. at 5 fn 4 (emphasis added).

Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA.  See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law").  The Board will consequently consider whether a TDIU may be awarded at any point in the appeal period prior to January 23, 2015.

In addition to the previously noted findings concerning the functional impairment of the Veteran’s lumbar spine disability, the record includes findings related to his COPD disability.  In a May 1992 letter, Dr. M. noted that the Veteran had been followed by him for several years for a chronic lung condition.  At the present time, he was using Proventil and theophylline, but his condition continued to degenerate.  He could not walk more than one or two blocks without marked dyspnea.  During a July 2000 VA examination related to COPD, the Veteran reported that he had become progressively short of breath.  Some days he smothered, and some days he was ok.  He reported being able to walk some days for about a city block.  He was being treated with beclomethasone, albuterol, and “Theodore.”  The examination showed decreased breath sounds and excursion of the chest with basilar crackles.  No wheezes were heard.  The examiner characterized the Veteran's COPD as moderately severe.

In September 2003, a VA examination for the Veteran's COPD noted his report that had experienced shortness of breath and coughing since service.  The Veteran reported that these symptoms became worse with time or when the Veteran was in a humid environment.  The Veteran was treating his symptoms with theophylline, a Combivent inhaler, and a flunisolide inhaler.  Regarding his daily activities, the Veteran was unable to walk more than a block at a time before needing to rest due to shortness of breath.  He was also able to climb no more than one flight of stairs, and this activity needed to be performed slowly to avoid becoming short of breath.  The physical examination showed that the Veteran became dyspneic with mild exercise such as walking from the waiting room to the examination table or getting on and off the examination table.  In October 2014, a VA examination related to COPD noted that the Veteran had started on continuous oxygen in October 2013.  In addition, COPD required the use of inhaled medications, specifically daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication.  The examiner opined that the Veteran's COPD impacted his ability to work, simply stating that he was unable to work.

The Veteran contended that his COPD and lumbar spine disability prevented him from securing or following any substantially gainful occupation.  See December 2019 VA Form 21-8940.  In support of the TDIU claim on appeal, the appellant's representative also highlighted the Veteran's report that both his back condition and COPD became steadily worse throughout the years, to the point where he could no longer perform his job duties.  See December 2020 Statement.  The representative also pointed to the December 2020 vocational opinion from Z.F., discussed further below, that the Veteran was unable to meet the physical requirement of the sedentary exertional level on a consistent basis due to his service-connected COPD and back condition from at least August 1996 to the time of his death in December 2019.

In December 2020, a TDIU vocational assessment report was completed by Z.F., a certified rehabilitation counselor.  Z.F. indicated that he had reviewed the claims file, and he opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least August 1996 until his passing in December 2019 solely due to his service-connected COPD and back condition.  Z.F. noted that the Veteran's December 2019 VA Form 21-8940 reflected that the Veteran obtained a maximum high school education with no college degree or additional certifications or licenses.  The VA Form 21-8940 also showed that he previously worked as truck driver from January 1983 to July 1983 with approximately 10 days per month lost time from his illness.  He then worked as a self-employed truck driver from January 1984 to April 1984 with an estimated 15 days lost each month due to his illness.  A December 2019 statement from the Veteran indicated that he last worked from January 1987 to February 1988 as a truck driver.  His duties included driving in addition to loading and unloading supplies.  In addition, an October 2017 VA treatment record noted that he worked his construction after service and as a truck driver for almost 30 years.  The Board notes that this summary is consistent with the information noted in these records.  Z.F. stated that the Veteran's past work as a truck driver was considered semi-skilled and classified at the medium exertional level.  A construction worker was considered unskilled and performed at the very heavy exertional level.  In addition, the Dictionary of Occupational Titles defined sedentary employment as exerting up to 10 pounds of force occasionally, and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body.  Sedentary work involved sitting most of the time, but it may involve walking or standing for brief periods of time.  Jobs were sedentary if walking and standing were required only occasionally and all other sedentary criteria were met.

Z.F. cited to several statements from the Veteran and findings from the VA examination reports during this period before concluding that in his vocational opinion, the evidence demonstrated that the Veteran was unable to walk distances longer than one city block with the use of an assistive device, stand or sit in a traditional chair for more than a few minutes, or lift more than a few pounds.  As such, the limitations caused by the Veteran's service-connected COPD and back disability at least as likely as not precluded him from meeting the physical requirements of even sedentary employment from at least August 1996 until the time of his death.  Z.F. added that all employers in the competitive labor market required basic expectations to be met by their workers, regardless of the skill level of the position.  These requirements included sustaining focus and attention for at least two hours at one time throughout the work day; refraining from taking unscheduled or prolonged breaks away from the work station; attending work on a regular basis, free from excess unscheduled absences, tardiness, or early departures; and producing a certain minimal amount of work day.

It was at least as likely as not that the Veteran was not capable of meeting these standard workplace requirements, event in an unskilled sedentary work role, due to his service-connected COPD and back condition.  The Veteran was unable to remain seated for more than a few minutes and arise safely without experiencing increased back pain or shortness of breath.  He was also unable to stand for more than a few minutes or walk longer than one block due to his back pain and shortness of breath.  This increased pain and shortness of breath would distract him from sustaining focus on work tasks for two consecutive hours and also require him to adjust his position or frequently rest to alleviate pain or recover from dyspnea.  The Veteran's frequent need for unscheduled breaks to rest due to dyspnea upon marginal physical exertion or adjust his position secondary to back pain, in combination with the distracting nature of his dyspnea and back pain itself, would compound throughout the day and render him off task in excess of 10 percent of the work day as well as unable to concentrate for two consecutive hours. In addition, because the Veteran was unable to obtain adequate sleep due to his back pain, he was constantly fatigued during the day.  This symptom further negatively impacted his ability to concentrate.  

In Z.F.'s vocational opinion, employees were only allowed to be off task for 10 percent of the day or less.  However, the Veteran's marked daytime somnolence as a result of chronically impaired sleep due to his service-connected back condition would have further caused lapses in concentration and rendered him off task more than would be tolerated by employers.  As such, Z.F. disagreed with the opinions from the April 2012 and February 2015 VA examiners that the Veteran's lumbar spine disability did not impact his ability to work.  The Veteran's service-connected back condition would have precluded his ability to perform even sedentary work due to his inability to remain seated for prolonged periods, stand, walk, or lift up to pounds occasionally as would be required for sedentary work.  Additional factors included the concentration difficulties, daytime fatigue, and need for unscheduled breaks that Z.F. previously described.  Z.F. found that the Veteran would have been unable to maintain concentration for two consecutive hours and complete a certain amount of work each day in accordance with pace and productivity expectations.  Z.F. also noted that in considering the Veteran's educational background and work history, his primary civilian career as a truck driver was considered semi-skilled.  However, this employment was primarily industry specific and would not have generative significant skills transferable to alternative work.  The Veteran also completed a maximum of a high school diploma which would not have provided him a significant amount of vocational advantage in the competitive workforce.  He was not only precluded his prior, physically arduous occupations, but all occupations in the competitive workforce as he was unable to meet the physical demands of even the sedentary exertional level, or maintain adequate concentration and pace to meet productivity standards,  Regardless of his vocational profile, the previously described functional impairments would have rendered him unable to meet the demands of even simple, unskilled sedentary employment with accuracy, efficiency, and consistency; rendering him unemployable in the competitive workforce, regardless of the skill or exertional level of the position.

The Board finds that Z.F.’s opinion provides great probative value as Z.F. included a full rationale that was well supported by several references to the relevant lay and medical evidence from the appeal period as well as occupational literature.  The Board has considered this evidence as well as the Veteran's education and work history in concluding that the Veteran would have been unable to function in any type of employment as a result of symptoms from his service-connected lumbar spine and COPD disabilities during the appeal period.  The Board also notes that the Veteran appeared able to perform certain aspects of daily living.  However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity.  See 38 C.F.R. § 4.10.  In addition, a Veteran does not have to prove that he is 100 percent unemployable in order to establish an inability to secure or follow a substantially gainful occupation, as required for a TDIU award.  See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

Resolving all benefit of the doubt in the Veteran's favor, the Board finds that the effects of Veteran's service-connected COPD and lumbar spine disabilities rendered him unable to secure or follow a substantially gainful occupation for the entire appeal period prior to January 23, 2015.  Thus, entitlement to a TDIU is warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

However, the Board finds that the issue of entitlement to a TDIU is moot from October 29, 2013 to January 22, 2015.  As noted above, the Veteran’s 100 percent rating during the appeal period on and after October 29, 2013 does not render his claim for a TDIU moot if it can be shown that the TDIU award is based on a single disability that is separate and distinct from his COPD disability.  As the only other separately ratable disability during this period was the lumbar spine disability, the TDIU award would need to be based on this disability alone in order for the Veteran to be entitled to SMC pursuant to 38 U.S.C. § 1114(s).  However, as discussed above, the Board is granting entitlement to a TDIU based on the functional effects of both his lumbar spine disability and COPD.  This finding is consistent with the Veteran’s contentions as well as Z.F.’s December 2020 opinion which was noted to be based on the impairment caused by both disabilities rather than the impairment caused solely by the lumbar spine disability.  The record does not reflect that the Veteran's lumbar spine disability alone prevented him from securing or following a substantially gainful occupation.  Under these circumstances, the 100 percent rating effective from October 29, 2013 also renders moot any claimed entitlement to a TDIU from October 29, 2013 to January 22, 2015.  As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the claim for a TDIU during this period must be dismissed.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

3.  Entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral eye disability (claimed as bilateral blindness) as a result of cataract surgeries performed at VA in December 2009 and September 2013, on the basis of substitution.

A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable.  38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013).  The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a).

First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question.  38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped.  VA considers each body part or system separately.  The additional disability must not be the result of the veteran's willful misconduct.  38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3).

Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA.  38 C.F.R. § 3.361(c).  In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA's negligence.  Viegas, 705 F.3d at 1378.

Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2).  The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant.  As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered.  Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010).

Moreover, additional disability caused by a veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination.  38 C.F.R. § 3.361(c)(3).

Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be:  (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable.  38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d).

Regarding carelessness or negligence, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent.  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(1).

Regarding reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013).

Thus, section 1151 contains two causation elements - a veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event.  38 U.S.C. § 1151(a)(1).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that compensation under 38 U.S.C. § 1151 for additional bilateral eye disability (claimed as bilateral blindness) as a result of cataract surgeries performed at VA in December 2009 and September 2013 is not warranted.

The Veteran contended that he developed additional bilateral eye disability, specifically worsened vision, as a result of cataract surgeries performed at VA in December 2009 and September 2013.  See May 2017 Statement; September 2019 VA examination.  The Veteran asserted that he was told by his eye doctor that he would be able to see better and without the aid of glasses after surgery.  See May 2017 statement.  However, the surgery on both eyes did not help him.  He had been told by eye doctors at VA that his eyesight would only worsen.  The Veteran asserted that he was no longer able to see well enough to read or write.

On November 4, 2009, a VA eye ophthalmology consultation noted that the Veteran reported to the clinic with the chief complaint of gradually decreasing vision over the last three to four years.  He reported that he could not see to drive at night, and he had difficulty reading.  These symptoms had been a gradual change.  The visual acuity with correction on the right was 20/40 +2, and on left was 20/30 +1.  The assessment was visually significant cataracts in each eye.  The examining ophthalmology resident noted that the Veteran was having symptoms and complaints that were likely due to his cataracts.  The provider opined that the Veteran would benefit from cataract extraction in both eyes.  The Veteran felt that his left eye was worse, and he wanted to proceed with cataract extraction with intraocular lens implant in the left eye.  After the risks, benefits, and alternatives were explained the Veteran he could proceed with the right eye afterwards if he so chose.  A plan was made for a preoperative visit on November 25, 2009.  The assessment also noted dry age-related macular degeneration in each eye.  At that point, if did not appear that his decreased vision was due to the macular degeneration.  The provider indicated that he discussed with the Veteran that his visual potential was unknown, and it was entirely 20/20, but they did feel that he would benefit from cataract surgery.  The record stated that the Veteran was understanding of this.  On November 25, 2009, a surgical history and physical stated that the Veteran was seen/examined by the attending physician, and he discussed a plan of care with the resident.  The history of the chief complaint was decreased vision in the left eye for some time.  The impression was visually significant cataract in the left eye, and the treatment plan was cataract extraction with intraocular lens placement in the left eye.

On December 9, 2009, a VA preoperative note stated that the diagnosis was visually significant cataract, left eye.  The findings included decline in functional vision of the left eye, and the plan for treatment was a cataract extraction with lens implant of the left eye.  The provider stated that he had discussed the risks, benefits, potential complications, and alternatives to the procedure with the patient and family; and they wished to proceed.  Also on December 9, 2009 an operation report noted that the pre- and post-operative diagnoses were visually significant cataract of the left eye; cataract type 2+ nuclear sclerotic cataract.  The procedure performed was a cataract extraction with intraocular lens implantation to the left eye.  The report stated that there were no complications.

A subsequent December 9, 2009 record noted that the Veteran presented to the ophthalmology clinic for same day status post cataract extraction with intraocular lens placement in the left eye.  The Veteran's visual acuity without correction was 20/80 with pinhole improvement to 20/70 in the left eye.  The assessment stated that the Veteran was instructed to begin using Acular, Pred Forte, and Ciloxan 4 times a day to the left eye.  A plan was made for him to wear his shield at night and when napping during the day.  He would limit his activities and avoid lifting, bending, or straining.  He was to return in one week for a repeat evaluation.  If he experienced any increased pain, increased redness, or decreased vision, he was to return to the clinic immediately.  A subsequent December 10, 2009 anesthesiology note stated that the Veteran was discharged.  His chart was reviewed, and there was no apparent anesthesia complication.  A December 10, 2009 follow-up survey note indicated that a post-operative phone call was made, and the Veteran's general condition was excellent with no pain.  He had resumed his normal activity.

On December 16, 2009, a VA treatment record noted the Veteran's report that he was doing well, and his vision had improved.  The visual acuity in the left eye was 20/70 -1, pin-holing to 20/30 -1.  The assessment stated that the Veteran was one week status post cataract extraction with intraocular lens placement.  He was doing well, and his activity restrictions were lifted.  He no longer had to wear an eye shield, and he would continue to use Acular 4 times a day until the bottle ran out.  He would use Pred Forte 4 times a day for 1 week, then decrease to 3 times a day for 1 week, then to 2 times a day for 1 week, then decrease to 1 time a day for 1 week.  He would stop using Ciloxan that day.  A plan was made for him to return to the clinic for a dilated fundoscopic examination, refraction, and evaluation of the cataract of the right eye in one month.

On January 29, 2010, a VA treatment record noted that the Veteran was seen for his one month follow-up on cataract extraction.  He reported that he was going well.  The visual acuity was 20/20 in the right eye, and the left eye -1.50 + 2.25 at 167 for a visual acuity of 20/30.  The assessment noted pseudophakia of the left eye.  The record stated that he was doing well.  He did not refract that well in his left eye which appeared to be due to "A __ pigment changes."  He was off all of his drops, and he was issued his manifest refraction.  The assessment also noted "dry __ of the left eye."  The provider noted that the Veteran was counseled on the use of AREDS vitamins, smoking cessation, and ancillary grid use.

On November 29, 2011, the Veteran presented to the VA ophthalmology clinic after being referred by ophthalmology by optometry for possible cataract extraction with intraocular lens placement in the right eye.  He complained that his reading ability in his right eye had been decreasing and tended to fade out.  He did have some problems with glare, especially at night or when in bright sunlight.  However, his transition lenses helped him with that problem.  He had a past ocular history of visually significant cataract in the left eye, status post cataract extraction with intraocular lens placement; non-visually significant cataract in the right eye; dry age-related macular degeneration in both eyes; status post bilateral upper lid blepharoplasty with bilateral internal browpexy in January 2011; and dry eye syndrome.  His visual acuity with correction was approximately 20/50 in the right eye pin holing to 20/40 +3; and 20/30 in the left eye.  The assessment stated that there was 2+ nuclear sclerotic cataract in the right eye with cortical changes.  The possibility of actually having cataract surgery was discussed with the Veteran, and the option was given as the patient did have a visual acuity with glare of approximately 20/80 +1 in the right eye.  However, the Veteran elected to try to correct his vision with glasses before pursuing any sort of cataract extraction with intraocular lens placement in the right eye.  The risks, benefits, and alternatives of cataract extraction were discussed with the Veteran, and he said that he would much prefer to try to use glasses.  The Veteran was also nervous about being on Coumadin therapy and undergoing cataract extraction, although the risks associated with this were explained to the Veteran as being rare.  The assessment also noted pseudophakia left eye that was stable; and dry age-related macular degeneration in both eyes.  Regarding the dry age-related macular degeneration, the provider noted that on dilated funduscopic examination, there are some areas of retinal pigment epithelial clumping in the macula associated with dry age-related macular degeneration.  The Veteran was currently on his Ivite multivitamins and had an Amsler grid at home.  He would follow up in the ophthalmology clinic if he noticed any changes with his vision associated with his age-related macular degeneration.  The assessment also noted that he was status post blepharoplasty in both eyes.  The Veteran was satisfied with his results after surgery, and he noted that he was much more comfortable and that his visual acuity was better, etc.  Dry eye syndrome was also noted, and the provider stated that the Veteran would continue to take artificial tears as needed for dry eyes.

In July 2013, a VA treatment record stated that the Veteran presented for a comprehensive VA examination.  He was seen at VA in 2011 for a cataract evaluation and opted to defer surgery at that time.  He was now interested in pursuing cataract surgery in the right eye.  He was pseudophakic in the left eye, and he had age-related macular degeneration that was greater in the left eye than the right eye.  The record stated that the Veteran knew that his left eye was worse than the right, but he felt that this issue was related to his age-related macular degeneration.  His right eye had continued to decline for the last several years, and he described it as blurry.  His past ocular history was unchanged from the information noted in November 2011.  The ocular examination of the right eye visual acuity showed -1.25 +2.00 x 175, 20/40; and with glare testing, it was 20/60+.  The left eye was -1.25 + 2.25 x 171, 20/50-.  The assessment was visually significant cataract in the right eye.  The risks, benefits, and alternatives were discussed with the Veteran, including that his vision might not show any improvement due to age-related macular degeneration.  The Veteran understood and wanted to proceed.  He would have a return visit for pre-operative evaluation.  The assessment also noted pseudophakia of the left eye that was stable; dry age-related macular degeneration that was greater in the left eye than the right eye; status post blepharoplasty in both eyes and dry eye syndrome.

On August 19, 2013, a preoperative anesthesia consultation report noted that the scheduled date of the operation was September 12, 2013, and the proposed operation was cataract extraction with intraocular lens placement.  The preoperative diagnosis was visually significant cataract in the right eye.  On September 11, 2013, a preoperative procedure note stated that the diagnosis was visually significant cataract in the right eye.  The findings were decline in functional vision of the right eye, and the plan for treatment was cataract extraction with lens implant of the right eye.  The attending surgeon stated that he had seen the Veteran and discussed the risks, benefits, potential complications, and alternatives to the procedure with the Veteran and family and they wished to proceed.  On September 12, 2013, an eye postoperative note stated that the pre- and post-procedure diagnoses were visually significant cataract in the right eye.  The specific procedural performed was cataract extraction with intraocular lens placement in the right eye.  The report stated that there were no complications.

A subsequent September 12, 2013 VA treatment record noted that the Veteran was seen for a same day postoperative visit, and he was without complaint.  The examination showed that the visual acuity in the right eye without correction was 20/200.  The assessment stated that he was stable postoperatively, and the intraocular lens was in a good position.  It was noted that he also had a history of dry age-related macular degeneration in both eyes.  The Veteran was given postoperative topical medications, and a plan was made for him to restrict activities and maintain protective shield while reclining.  He was to call or return for increased pain, decreased vision, or other concerns.  A plan was made to follow-up in one week.  

On September 13, 2013, a VA follow-up surgery note stated that a postoperative phone call was made for the right eye cataract surgery.  The Veteran's general condition was noted to be fair.  The record indicated that he had pain, but it noted that it was a 0 out of 10.  The record also stated that he had resumed his normal activity, and the Veteran had commented that he was doing just fine.  On September 19, 2013, a VA treatment record stated that the Veteran was seen for his one week follow up visit for the cataract eye surgery.  The Veteran was without complaints, and he was very happy with his vision.  The right visual acuity was noted to be 20/30, pin-holed to 20/25 +2.  The assessment again stated that the Veteran was stable post-operatively, and the intraocular lens was in good position.  A plan was made to discontinue and/or taper the Veteran's topical medication before following up in 3 to 4 weeks.  On October 30, 2013, a VA treatment record noted that the Veteran was there for evaluation of vitreous condensation over the macular.  He reported that his floater as well as his vision had improved.  He was very happy.  The visual acuity of the right eye without refractive correction was 20/25; and the left eye was 20/60, pinhole no improvement.  The assessment stated that the Veteran was 8 weeks postoperative cataract extraction with intraocular lens placement in the right eye, 20/40 best corrected visual acuity.  He also had a history of dry age-related macular degeneration in both eyes.  The Veteran was doing well despite vitreous condensation, and he seemed to be improving.

The Veteran was provided with a VA examination related to his claim in September 2019.  The examiner noted diagnoses of nonexudative age-related macular degeneration (ARMD), bilateral, advanced atrophic with subfoveal involvement; presence of intraocular lens dating from 2009 and 2013; bilateral blepharitis; and dry eye syndrome.  The examiner noted that the Veteran was diagnosed with nonexudative (dry) ARMD approximately 15 years ago.  He later underwent cataract surgery in both eyes, with the left eye surgery occurring in 2009 and the right eye surgery occurring in 2013.  Although the Veteran had been told it would improve his vision, he reported that he had experienced continuously declining vision since the surgery to the point of legal blindness and disability.  The physical examination showed that the uncorrected distance visual acuity in the right and left eye was 5/200 or worse.  The examiner noted that the Veteran had a visual acuity of 20/200 or less in the better eye with use of a correcting lens based upon visual acuity loss (i.e., USA statutory blindness with bilateral visual acuity of 20/200 or less).  The examiner noted in the report that the Veteran's visual acuity or other visual impairment was attributable to end stage nonexudative age related macular degeneration bilaterally with severe geographic atrophy in both eyes.  The Veteran was legally blind, he had difficulty completing normal daily tasks, and he was not able to drive.

In a separate opinion, the examiner stated that the claimed condition of decreasing vision to the point of blindness being caused by cataract surgery completed by the VA was less likely than not incurred by the claimed event.  The examiner explained that the Veteran had a chronic and progressive condition (ARMD) that had caused his severe vision loss.  This diagnosis was not worsened by cataract surgery and oftentimes cataract surgery is completed on patients with ARMD to improve vision to its best possible state.  The examiner added that unfortunately, it has opinion is that the Veteran had not fully understood that cataract surgery was not a cure for his ARMD but a procedure done to give him his best possible acuity even though he had a progressive uncurable condition, which had unfortunately progressed to the point of severe vision loss.  The examiner separately noted that in fact, the Veteran’s vision initially improved following the procedure, but the natural progression of ARMD has resulted in severe vision loss.  Cataract surgery had not been linked to worsening ARMD in studies to this point.  It was routinely done on patients with ARMD to provide them with the best possible visual acuity.  The examiner also noted that the disability was not likely worsened by the treatment at issue.  The Veteran was under VA care throughout the time in question and after reviewing the records, VA did not fail in their treatment of the Veteran.  The examiner concluded that the Veteran’s disability had occurred due to the natural progression of dry ARMD which had no treatment or cure.  The examiner also noted that the diagnoses of dry eye syndrome and blepharitis were commonly occurring ocular pathologies.  These disorders were also not caused by, or worsened by, the cataract surgeries.

In reaching this conclusion, the examiner performed a thorough review of the evidence in the claims file, including the Veteran's treatment records and contentions.  In reading the opinion as a whole and in the context of the evidence of record, the Board finds that the examiner's determination, which addresses the central medical issues in this case, was based on an analysis of the evidence and current medical understanding, and is therefore entitled to probative weight.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion,"); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record).

In summary, although the September 2019 VA examination report indicates that the Veteran had additional bilateral disability since the time of the December 2009 and September 2013 cataract surgeries, the evidence does not establish that the disability was caused by these surgeries.  The preponderance of the evidence therefore establishes that the Veteran’s worsened bilateral vision after the cataract surgeries performed at VA in December 2009 and September 2013 was the direct result of the natural progression of bilateral nonexudative age-related macular degeneration, advanced atrophic with subfoveal involvement; and it was not caused by the cataract surgeries performed at VA in December 2009 and September 2013.  In addition, the examiner determined that neither dry eye syndrome nor blepharitis were caused by the cataract surgeries.  If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability).  That is, because the evidence of record does not demonstrate additional coronary artery disability caused by VA treatment, examination, or surgery, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability.  Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d).

In addition, there has been suggestion from the Veteran, the appellant, or the evidence of record that VA failed to timely diagnose or properly treat the ARMD to proximately cause the continuance or natural progress of the disability.  38 C.F.R. § 3.361(c)(2).

Although the Board acknowledges the Veteran’s contention that he experienced additional bilateral eye disability as a result of the surgeries performed at VA in December 2009 and September 2013, the Board finds that the Veteran is not competent to provide an opinion on this question.  Although it is error to categorically reject a lay person as competent to provide an opinion, not all questions of causation are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide an opinion depends on the facts of the particular case.  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.

In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4.  Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence.  While the Veteran is competent to describe his symptoms following the cataract surgeries at issue, he is not competent to relate them to the surgeries.  This particular inquiry is within the province of trained medical professionals because it involves a complex medical issue and is not capable of lay observation - it is a complex internal process as opposed to an external process or something capable of lay observation, such as ringing in the ears, scars, or varicose veins.  As the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on this question, the Board finds that the Veteran's statements as to how his additional bilateral eye disability began or was caused are not competent evidence establish causation.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Consequently, his statements on this question lack probative value.

Based on the foregoing, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional bilateral eye disability from cataract surgeries performed at VA in December 2009 and September 2013 have not been met, and the weight of the evidence is against the Veteran's claim.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.

REASONS FOR REMAND

1.  Entitlement to service connection for sleep apnea, to include as secondary to service-connected COPD and/or post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

The record shows that the May 2019 Board decision remanded the Veteran's service connection claim for sleep apnea to obtain a new VA medical opinion as the prior opinion obtained in October 2014 did not address the aggravation prong of secondary service connection regarding the theory that his sleep apnea was secondary to his service-connected COPD.  In October 2019, a VA examiner opined that condition claimed was less likely than not proximately due to, or the result of, the Veteran's service-connected condition.  The examiner stated that COPD referred to pathology of the lung tissue itself and typically presented in heavy long-time smokers such as the Veteran.  In obstructive sleep apnea, there was obstruction upper airway, typically due to intermittent collapse of the airway leading to obstruction of the airway.  This disorder was diagnosed based on objective criteria measured during a sleep study.  The pathology of COPD occurred at a different location and involved the lung itself; whereas obstructive sleep apnea limited airflow to the lung due to intermittent obstruction of the airway above the lung.  CODP was not a risk factor for sleep apnea and did not cause sleep apnea.  Progression of COPD lead to worsening of COPD, but it did not affect the progression of sleep apnea.  However, the October 2019 VA medical opinion is not fully adequate because the VA examiner provided the exact same rationale in discounting both the causation and aggravation aspects of the theory of secondary service connection.  On this point, the Court has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale.  Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018).  A VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as also required by El-Amin.  Applying this caselaw to the facts of the present case, when addressing secondary service connection for sleep apnea, the February 2020 VA examiner appears to mix causation and aggravation, and without a more detailed explanation, it does not appear this VA examiner provided a rationale that dealt with causation and aggravation as independent concepts.  Atencio, 30 Vet. App. at 91.  As such, an additional VA medical opinion should be obtained on remand.

In addition, neither the prior October 2014 VA medical opinion nor the September 2019 VA medical opinion has addressed the theory raised by the Veteran that his sleep apnea was secondary to pain from his lumbar spine disability.  The Veteran indicated in a July 2016 statement that he was unable to sleep due to pain from his degenerative joint disease, and the Veteran was service-connected for post discectomy degenerative joint disease of the lumbar spine.  Thus, the examiner should also address this theory on remand.  Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004).

2.  Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

3.  Entitlement to service connection for a bilateral elbow disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

4.  Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

5.  Entitlement to service connection for a bilateral hand disorder, to include as secondary to service-connected post discectomy degenerative joint disease of the lumbar spine, on the basis of substitution, is remanded.

In the March 2018 Board remand, the Board found that the AOJ had failed to code the Veteran's lumbar spine degenerative joint disease as either traumatic (Diagnostic Code 5010), generalized (Diagnostic Code 5003), or in some other form.  The Board also noted that there was evidence that the Veteran had diagnoses of osteoarthritis of the bilateral hip and degenerative changes of the left shoulder, and it was unclear whether these matters were subsequent manifestations of any already service-connected disease process pursuant to 38 C.F.R. 3.303(b).  The Board directed the AOJ to issue a formal rating decision that correctly coded the form of joint disease; and if the AOJ coded the joint disease as Diagnostic Code 5003; then the AOJ was to afford the Veteran a VA examination to determine the nature and etiology of any shoulder, bilateral elbow, and bilateral hand disability.  

As indicated above, the AOJ later issued a March 2019 DRO decision that assigned Diagnostic Code 5010-5242 for the Veteran’s post-discectomy degenerative joint disease of the lumbar spine.  Nevertheless, the Veteran was provided with August 2018 VA examinations specific to his claimed bilateral hip disorder, bilateral elbow disorder, bilateral shoulder disorder, and bilateral hand disorder.  The examination reports noted diagnoses of degenerative arthritis in the bilateral hands, bilateral shoulders, bilateral hips, and bilateral elbows.  However, no medical opinion was provided regarding these diagnoses.

The Veteran contended that his arthritis of the bilateral hands, shoulders, hips, and elbows was secondary to his lumbar spine disability.  In a July 2016 statement, the Veteran indicated that his doctors had informed him that degenerative joint disease could spread all over his body.  The Board notes that regardless of the diagnostic code for arthritis that was assigned to the Veteran’s lumbar spine disability, his service-connected disability still includes degenerative joint disease.  The Veteran was also competent to relay what a doctor has told him.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds that this evidence meets the low threshold as set forth in McLendon to secure a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Although a prior May 2016 VA medical opinion found that the Veteran’s left shoulder degenerative joint disease and bilateral hip degenerative joint disease were less likely than not caused by, or the result of, his lumbar spine disability, the opinions are inadequate as the examiner did not provide a clear opinion as to whether these disorders were aggravated the Veteran's lumbar spine disability.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).  As such, a remand is still necessary to obtain an additional VA medical opinion.

6.  Entitlement to service connection for a bilateral eye disorder (claimed as bilateral eye blindness), on the basis of substitution, is remanded.

A VA examination and medical opinion related to the Veteran's service connection claim for a bilateral eye disorder (claimed as bilateral blindness) were provided in September 2019.  The examiner noted diagnoses of nonexudative age-related macular degeneration, bilateral advanced atrophic with subfoveal involvement; presence of intraocular lens dating from 2009 and 2013; bilateral blepharitis; and dry eye syndrome.  The examiner addressed the Veteran’s service connection claim simultaneously with his claim for compensation under 38 U.S.C. § 1151 in the same opinion.  The examiner noted that the records did not support that any of the diagnosed conditions began during service.  However, the examiner added that the dry eye syndrome and blepharitis that were seen in the VA examination were less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The records reviewed did not support that these conditions began during service, these two disorders were not caused or aggravated by the Veteran's service, and they were commonly occurring pathologies unrelated to his service.  

The examiner also addressed the Veteran's claim for compensation under 38 U.S.C. § 1151, noting that his severe vision loss was caused by age-related macular degeneration.  However, the examiner's rationale did not specifically address whether the age-related macular degeneration was related to service.  In stating that this disorder was not aggravated beyond its natural progression by an in-service event, the examiner specifically noted that he was referring to the post-service cataract surgery as the in-service event.  The Board consequently finds that this opinion is inadequate, and an additional VA medical opinion should be obtained on remand.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The matters are REMANDED for the following action:

1.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for sleep apnea.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he had first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

For the Veteran’s diagnosed obstructive sleep apnea, the examiner must then provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's sleep apnea manifested during service, or is otherwise related to active service? 

If the examiner determines that the Veteran's sleep apnea was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's sleep apnea was caused by his service-connected COPD and/or post discectomy degenerative joint disease of the lumbar spine?

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's sleep apnea was "aggravated by" or "worsened by" his service-connected COPD and/or post discectomy degenerative joint disease of the lumbar spine?  (Aggravation is defined as a worsening of the disability beyond natural progression.)

In providing an opinion, the examiner should address the Veteran’s July 2016 statement that he was unable to sleep due to pain from his degenerative joint disease.

2.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for a bilateral hip disorder.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all bilateral hip disorders present during the appeal period.  If degenerative arthritis is not identified, the examiner should address the diagnosis from the August 2018 VA examination. 

For any identified disorder, the examiner must then provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder manifested during service, or is otherwise related to active service? 

If the examiner determines that the disorder was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that the disorder was caused by his service- post discectomy degenerative joint disease of the lumbar spine?

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder was "aggravated by" or "worsened by" his service-connected post discectomy degenerative joint disease of the lumbar spine?  (Aggravation is defined as a worsening of the disability beyond natural progression.)

3.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for a bilateral elbow disorder.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all bilateral elbow disorders present during the appeal period.  If degenerative arthritis is not identified, the examiner should address the diagnosis from the August 2018 VA examination. 

For any identified disorder, the examiner must then provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder manifested during service, or is otherwise related to active service? 

If the examiner determines that the disorder was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that the disorder was caused by his service- post discectomy degenerative joint disease of the lumbar spine?

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder was "aggravated by" or "worsened by" his service-connected post discectomy degenerative joint disease of the lumbar spine?  (Aggravation is defined as a worsening of the disability beyond natural progression.)

4.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for a bilateral shoulder disorder.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all bilateral shoulder disorders present during the appeal period.  If degenerative arthritis is not identified, the examiner should address the diagnosis from the August 2018 VA examination. 

For any identified disorder, the examiner must then provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder manifested during service, or is otherwise related to active service? 

If the examiner determines that the disorder was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that the disorder was caused by his service- post discectomy degenerative joint disease of the lumbar spine?

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder was "aggravated by" or "worsened by" his service-connected post discectomy degenerative joint disease of the lumbar spine?  (Aggravation is defined as a worsening of the disability beyond natural progression.)

5.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for a bilateral hand disorder.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all bilateral hand disorders present during the appeal period.  If degenerative arthritis is not identified, the examiner should address the diagnosis from the August 2018 VA examination. 

For any identified disorder, the examiner must then provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder manifested during service, or is otherwise related to active service? 

If the examiner determines that the disorder was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that the disorder was caused by his service- post discectomy degenerative joint disease of the lumbar spine?

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder was "aggravated by" or "worsened by" his service-connected post discectomy degenerative joint disease of the lumbar spine?  (Aggravation is defined as a worsening of the disability beyond natural progression.)

6.  Obtain a VA medical opinion from a qualified examiner that addresses the Veteran’s service connection claim for a bilateral eye disorder.  The claims file must be made available to the examiner.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed.  

The Veteran was competent to attest to matters of which he has first-hand knowledge, including observable symptoms.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all bilateral eye disorders present during the appeal period.  If nonexudative age-related macular degeneration (ARMD), bilateral advanced atrophic with subfoveal involvement; presence of intraocular lens dating from 2009 and 2013; bilateral blepharitis; and dry eye syndrome are not identified, the examiner should address the diagnoses from the September 2019 VA examination. 

For any identified disorder, the examiner must then provide an opinion as whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran's disorder manifested during service, or is otherwise related to active service.

If the examiner determines that the disorder was less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. 

7.   After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.   

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.C. Spragins, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.