Citation Nr: 21006626
Decision Date: 02/04/21	Archive Date: 02/04/21

DOCKET NO. 20-11 349
DATE: February 4, 2021

ORDER

New and material evidence not having been submitted, the petition to reopen a claim of entitlement to service connection for diabetes mellitus is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for a neck disorder is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to a disability rating in excess of 20 percent for a left knee disability is denied.

Entitlement to a separate noncompensable rating for a surgical scar on the left knee is granted. 

Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied.

Entitlement to a separate rating of 10 percent for left lower extremity radiculopathy is granted.

Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied.

Entitlement to an initial rating of 70 percent, but no higher, for somatic symptom disorder with predominant pain is granted.

Entitlement to an effective date earlier than November 14, 2016, for the grant of service connection for somatic symptom disorder with predominant pain is denied.

REMANDED

Entitlement to service connection for a sleep disorder is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. In an unappealed rating decision issued in September 2010, the RO denied service connection for diabetes mellitus; the Veteran was notified of the decision but did not file a notice of disagreement.   

2. Evidence added to the record since the final September 2010 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating service connection for diabetes mellitus.

3. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service.

4. The preponderance of the evidence is against finding that the Veteran has a neck disorder due to a disease or injury in service.

5. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service.

6. The Veteran does not have a current diagnosis of a right knee disorder.

7. The left knee medial meniscus tear is characterized by pain on motion, with flexion limited to 100 degrees.

8. Effective from November 14, 2016, the date of receipt of the claim for an increased rating, the surgical scar of the left knee has not been shown to be painful or unstable, and does not total an area greater than 39 square centimeters (cm).  

9. The Veteran’s lumbar spine is not manifested by ankylosis; there is no evidence of incapacitating episodes during the past 12 months or of bowel or bladder impairment.  

10. Effective from June 11, 2018, the competent and credible evidence shows the Veteran has radiculopathy of the left lower extremity that is manifested by mild incomplete paralysis of the sciatic nerve.  

11. The Veteran’s radiculopathy of the right lower extremity is manifested by mild incomplete paralysis of the sciatic nerve.

12. The Veteran’s somatic symptom disorder with predominate pain is characterized by occupational and social impairment with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment.

13. The Veteran’s claim of entitlement to service connection for a psychiatric disorder was received by VA on November 14, 2016.  

CONCLUSIONS OF LAW

1. The September 2010 RO decision that denied the claim of entitlement to service connection for diabetes mellitus is final.  38 U.S.C.§ 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

2. New and material evidence has not been received to reopen the claim for service connection for diabetes mellitus.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

3. The criteria for service connection for tinnitus are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

4. The criteria for service connection for a neck disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309.

5.  The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309.

6. The criteria for service connection for a right knee disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

7. The criteria for a rating of 20 percent for the left knee disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258.    

8. As of November 14, 2016, the criteria for a separate noncompensable rating for a surgical scar of the left knee have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805.

9. The criteria for entitlement to a rating in excess of 40 percent for a low back disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. 

10. The criteria are met for a separate 10 percent rating, but no higher, for left lower extremity radiculopathy.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8520. 

11. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8520.

12. The criteria for an initial disability rating in excess of 70 percent, but no higher, for somatic symptom disorder with predominate pain have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9422.

13. The criteria for an effective date earlier than November 14, 2016, for the grant of service connection for somatic symptom disorder with predominant pain have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1973 to December 1993.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

1. New and material evidence: Diabetes mellitus

The Veteran’s claim of entitlement to service connection for diabetes mellitus was previously denied in a September 2010 rating decision.  The Veteran did not appeal this rating decision.  As such, the September 2010 decision is final.  38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020).  

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the duty to assist by providing a medical opinion.  Id.   

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

In previously denying the Veteran’s claim for service connection for diabetes, the evidence of record included available personnel records that do not show the Veteran served in the Republic of Vietnam; service treatment records that failed to show any complaints, treatment, or diagnosis for this disorder; VA treatment records dated through 2010 noting a diagnosis of diabetes and the subsequent treatment; and, the Veteran’s statements in support of his claim that he set foot on the landmass of the Republic of Vietnam warranted service connection on a presumptive basis.  The RO denied the claim on the basis the evidence failed to show service in Vietnam, and there was no evidence that supports a finding that the disorder may be attributed to the Veteran’s service on a direct incurrence basis.   

The Veteran filed a petition to reopen the claim in November 2016.  The February 2017 rating decision continued the previous denial.  

The evidence received since the last prior final denial of the claim in September 2010 includes additional VA treatment records and additional statements by the Veteran regarding the other claims presently on appeal.  Of note, neither the Veteran nor his attorney have presented any medical evidence or additional argument, not cumulative of prior arguments, that would support a finding that the diagnosed diabetes is etiologically attributable to his service.  

Further, the VA treatment records do not include any etiological opinions that attribute the diagnosed diabetes to the Veteran’s service.  Moreover, there is no additional evidence in the claims file attributing the disorder to service.  

Consequently, there is no evidence of record indicating that the Veteran’s claimed diabetes mellitus may be attributed to his service aside from the arguments previously considered in the final September 2010 rating decision.  

As there exists no new contentions or evidence to support the claim, the evidence added to the record is either cumulative, or unrelated to the claim.  As new and material evidence has not been submitted, the claim for service connection for diabetes mellitus is not reopened, and the appeal as to this issue is denied.  

Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).  Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include tinnitus, hypertension, and arthritis, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

2. Tinnitus

The Veteran is seeking entitlement to service connection for tinnitus that he believes is due to his service.  The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.  The Board concludes that, while the Veteran has a diagnosis of tinnitus (see December 2016 VA Examination), the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

The Veteran’s service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of tinnitus, or even symptoms commonly associated with tinnitus.  Additionally, his personnel record shows the Veteran’s military occupational specialty was listed as a cannon specialist, which has a high risk of exposure to hazardous noise.  See DD Form 214.  Thus, in-service noise exposure is conceded.  

Following service, the available VA treatment records fail to show any treatment for or complaints of tinnitus until approximately April 2010.  At that time, it was noted that the Veteran reported the onset of constant tinnitus approximately 2 months prior, occurring in both ears.  The Veteran related he had 21 years of artillery noise exposure without hearing protection.  

In December 2016, the Veteran was scheduled for a VA audiological examination regarding this claim for service connection.  The VA examiner concluded that it is less likely that the Veteran’s service noise exposure led to the onset of tinnitus since he reported concerns of tinnitus more than 17 years after separating from active duty.  The examiner further explained that the Veteran’s records show he began taking several medications in the past few years that can have ototoxic effects on the ears and has a higher chance of leading to damage to the cochlear outer hair cells.  The examiner stated that it must also be considered that the cochlear outer hair cells will begin to weaken through the normal aging process, which, as is the case here, the Veteran had normal hearing levels in both ears until 2010.  The examiner noted that the Veteran had begun to have mild hearing loss in the high frequencies, and this natural aging process of the ear may also contribute to the onset of tinnitus.  

Based on the foregoing, the Board concludes that the preponderance of the evidence is against the service connection claim.  The December 2016 VA examiner found that the Veteran’s tinnitus was not related to service.  This examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran’s pertinent medical and lay history.  The examiner provided a rationale regarding the Veteran’s current condition and offered an adverse opinion regarding the relationship between the Veteran’s active duty service and the results of the examination.  There are no conflicting medical opinions.  

The Veteran has asserted his personal belief that his diagnosed tinnitus is due to noise exposure in service.  The Veteran is competent to report noise exposure in service and to report ringing in his ears, per Charles v. Principi, 16 Vet. App. 370, 374 (2002), but he is not competent to opine regarding the etiology of his tinnitus that demonstrably became manifest many years after service, as here.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

In sum, the Veteran’s claim fails because, while he has met the first element of service connection, the requirement of a current diagnosis, the evidence of record fails to establish that his tinnitus was incurred in or due to service.  Accordingly, service connection for tinnitus is not warranted because the Veteran has not satisfied the nexus requirement of attributing the disorder to his active service.  See 38 C.F.R. § 3.303.  In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine does not apply.  38 U.S.C. § 5107(b).  

3. Neck disorder

The Veteran contends that he has a neck disorder that is due to his service.  The Board notes that neither the Veteran nor his attorney have advanced any argument with respect to this claim.   

As an initial matter, the record reflects the Veteran has a current diagnosis of degenerative disc disease of the cervical spine, hereinafter a “neck disorder.”  See  October 2014 VA treatment record.  Nevertheless, for the reasons discussed below, the Board concludes that the preponderance of the evidence weighs against finding that a neck disorder began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.309.

Turning first to presumptive service connection, the record does not establish that the Veteran was diagnosed with this disorder within one year of service.  Here, the record reflects the Veteran’s degenerative disc disease was initially diagnosed in October 2014.  As this disorder was not diagnosed within one year of the Veteran’s separation from service, which would have been by 1994, entitlement to presumptive service connection on this basis is also not warranted.

The failure to meet the criteria for a presumption does not, however, preclude a Veteran from establishing entitlement to service connection on a different basis.  See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The Veteran could show that his condition is otherwise related to service on a direct basis. 

Here, however, the Veteran’s service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of a neck disorder. 

Further, despite the existence of numerous post-service VA treatment records associated with the claims file, these records do not contain any etiological opinions attributing the neck disorder to the Veteran’s service. 

Thus, there is simply no evidence of record, aside from the Veteran’s inclusion of this disorder on his November 2016 VA Form 21-526EZ requesting service connection.  

The Board has also reviewed the Veteran’s statements and those submitted by his friends and family in support of this appeal, generally.  However, here, the Board notes that the several lay statements from the Veteran’s friends and family have omitted the claim for a neck disorder.  The Board acknowledges the Veteran’s assertions that he set forth when initially filling his claim for service connection for this disorder, namely, that he has a neck disorder due to service.  While the Veteran may believe this disorder is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case, as the issues of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, these assertions are not considered competent and do not weigh against the probative value of the medical treatment records, which do not show evidence of the claimed disorder or recurrent symptomatology consistent with this disorder.

The Board has also considered continuity of symptomatology.  However, there is also no indication of continuity of symptomology, as the evidence does not reflect that the Veteran has been receiving treatment for this disorder on a continuous basis since separation.  Moreover, the Veteran has not asserted that he has experienced symptoms indicative of a neck disorder, such as pain, since his separation from service.  

Finally, the Board acknowledges that the Veteran has not been provided with a VA compensation examination addressing his service connection claims for a neck disorder.  Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  In service-connection claims, such as is the case here, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

In this case, an examination is not necessary to adjudicate the Veteran’s service-connection claim, as there is no in-service evidence of a disease or injury to account for the current complaints associated with the claimed disorder.  Therefore, a remand requesting an examination for the issue identified is not required.  38 C.F.R. § 3.159(c)(4); McLendon, supra.

Accordingly, service connection for a neck disorder is not warranted because the Veteran has not satisfied the nexus requirement of attributing the disorder to his active service.  See 38 C.F.R. § 3.303.  In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine does not apply.  38 U.S.C. § 5107(b).  

4. Hypertension

The Veteran contends that he has hypertension that is due to his service.  The Board notes that neither the Veteran nor his attorney have advanced any argument with respect to this claim.   

As an initial matter, the record reflects the Veteran has a current diagnosis of hypertension.  See June 2010 VA treatment record.  Nevertheless, for the reasons discussed below, the Board concludes that the preponderance of the evidence weighs against finding that hypertension began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.309.

Turning first to presumptive service connection, the record does not establish that the Veteran was diagnosed with hypertension, the only disorder for which this presumption would apply, within one year of service.  Here, the record reflects that the Veteran’s hypertension was initially diagnosed in June 2010.  As this disorder was not diagnosed within one year of the Veteran’s separation from service, which would have been by 1994, entitlement to presumptive service connection on this basis is also not warranted.

The failure to meet the criteria for a presumption does not preclude a Veteran from establishing entitlement to service connection on a different basis.  Here, however, the Veteran’s service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of hypertension.  Further, despite the existence of numerous post-service VA treatment records associated with the claims file, these records do not contain any etiological opinions attributing hypertension to the Veteran’s service.  Thus, there is simply no evidence of record, aside from the Veteran’s inclusion of this disorder on his November 2016 VA Form 21-526EZ requesting service connection.  

The Board has also reviewed the Veteran’s statements and those submitted by his friends and family in support of this appeal, generally.  However, here, the Board notes the several lay statements from the Veteran’s friends and family have omitted the claim for hypertension.  The Board acknowledges the Veteran’s assertions that he set forth when initially filling his claim for service connection for this disorder, namely, that he has hypertension due to service.  While the Veteran may believe this disorder is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case, as the issues of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, these assertions are not considered competent and do not weigh against the probative value of the medical treatment records, which do not show evidence of the claimed disorder or recurrent symptomatology consistent with this disorder.

The Board has also considered continuity of symptomatology.  However, there is also no indication of continuity of symptomology, as the evidence does not reflect that he has been receiving treatment for this disorder on a continuous basis since separation.  Moreover, the Veteran has not asserted that he has experienced symptoms indicative of hypertensions, such as shortness of breath or chest pain, since his separation from service.  

Finally, the Board acknowledges that the Veteran has not been provided with VA compensation examinations addressing his service connection claim for hypertension.  As described above, regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, an examination is not necessary to adjudicate the Veteran’s service-connection claim, as there is no in-service evidence of a disease or injury to account for the current complaints associated with this claimed disorder.  Therefore, a remand requesting an examination is not required.  38 C.F.R. § 3.159(c)(4); McLendon, supra.

Accordingly, service connection for hypertension is not warranted because the Veteran has not satisfied the nexus requirement of attributing the disorder to his active service.  See 38 C.F.R. § 3.303.  Again, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine does not apply.  38 U.S.C. § 5107(b).  

5. Right knee disorder

The Veteran is seeking entitlement to service connection for a right knee disorder.  The Board notes that neither the Veteran nor his attorney have advanced any argument with respect to this claim.  The question for the Board is whether the Veteran currently has a current diagnosis of a right knee disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease.  For the reasons discussed below, the Board concludes that the Veteran does not have a currently diagnosed right knee disorder and has not received a diagnosis of a right knee disorder at any time during the pendency of the claim or recent to the filing of the claim.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

The Veteran’s service treatment records are completely silent regarding complaints of, treatment for, or a diagnosis for a right knee disorder.  Following separation from service, the VA treatment records also do not show he has ever complained of pain or other relevant symptomatology that may be associated with a right knee disorder.  Moreover, he has not sought treatment for a right knee disorder during the pendency of this appeal, or contemporaneous to the filing of his claim.  

The Board has also reviewed the Veteran’s statements and those submitted by his friends and family in support of claim for service connection for the right knee disorder.  However, here, the Board notes the several lay statements from the Veteran’s friends and family have omitted the claim for a right knee disorder and, instead, focus only on the severity of the left knee or make general statements as to pain.  See June 2010 Statement from the Veteran; see also October 2019 Lay Statement.  The Board acknowledges the Veteran’s assertions that he set forth when initially filling his claim for service connection for this disorder, namely, that he has a right knee disorder due to service.  However, the Veteran has not been shown to have the medical training and knowledge required to diagnose such a condition.  Therefore, these assertions are not considered competent and do not weigh against the probative value of the medical treatment records, which do not show evidence of the claimed disorder or recurrent symptomatology consistent with this disorder.

Additionally, the Board acknowledges that the Veteran has not been provided with a VA compensation examination specifically addressing his service connection claim for a right knee disorder.  Instead, in advancing his appeal as to the severity of the service-connected left knee disability, both prior to and contemporaneous with the filing of this claim for service connection, the Veteran has undergone VA examinations in August 2010, December 2016, and June 2018.  However, none of these examinations noted a currently diagnosed right knee disorder, to include any reports of pain.  In view of the facts of record, and in light of McLendon v. Nicholson, supra, an examination is not necessary to adjudicate the Veteran’s service connection claim, as there is no evidence of a currently diagnosed right knee disorder, to include any reports of pain that may result in functional impairment.  Therefore, there is no basis for a remand for a VA examination.  38 C.F.R. § 3.159(c)(4).

As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).

Thus, the Board finds that the Veteran’s claim fails, as he has not met the first element of service connection, the requirement of a current diagnosis, for the claimed right knee disorder.  

As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a pulmonary disorder, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107(b).  As such, the claim must be denied. 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. Part 4. 

The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where there is a question as to which of two evaluations shall be applied, 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.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

In reaching its determinations on the increased rating claims, the Board notes that this appeal raises no additional rating issues, other than the TDIU claim addressed below.  Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). 

Musculoskeletal Disabilities

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given.  It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.  Id.  

6. Left knee disability

The Veteran is seeking entitlement to a rating in excess of 20 percent for his left knee disability.  By way of history, he was granted service connection for this disability in an August 1994 rating decision, and assigned an initial rating of 10 percent.  A July 2003 rating decision increased the rating to 20 percent, effective from April 29, 2003.  In November 2016, he again filed for an increased rating for this disability.  Therefore, the relevant temporal focus for these increased rating claims is from November 14, 2015, one year prior to the date of receipt of the claim for higher ratings.  

The Veteran’s left knee disability, diagnosed as medial meniscus tear, has been rated at 20 percent disabling pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5257.  

The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.”  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in Diagnostic Code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Board finds that the assignation of this particular Diagnostic Code is inappropriate given the Veteran's disability, which has been consistently diagnosed as meniscal tear of the left knee.  In this respect, Diagnostic Code 5257 requires recurrent subluxation or lateral instability of the left knee, which has not been shown.  As will be discussed below, there is simply no evidence in either the two VA examinations or the available treatment records that show subluxation or instability.  There is also no evidence of instability and arthritis as would support separate ratings.  Therefore, the Board finds that the appropriate diagnostic code for this disability is 5258.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology.  VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998).  Moreover, the General Counsel also held that separate ratings under 38C.F.R. §4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOGCPREC 9-2004 (Sept. 2004).

For purposes of this decision, normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71a, Plate II.

Diagnostic Codes 5260 and 5261 provide for ratings based on limitation of motion.  Evaluations for limitation of flexion of the knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Additionally, ratings of the knee may also be assigned under other Diagnostic Codes.  Diagnostic Code 5256 evaluates ankylosis of the knee.  Diagnostic Code 5262 evaluates impairment of the tibia and fibula.  Diagnostic Code 5263 evaluates genu recurvatum.  

Pertaining specifically to the meniscus, Diagnostic Code 5258 provides that a 20 percent rating is assigned when the cartilage or semilunar (which is synonymous with the meniscus) is dislocated with frequent episodes of "locking," pain, and effusion into the joint.  In addition, Diagnostic Code 5259 also evaluates impairment of the semilunar cartilage (meniscus) and allows a maximum rating of 10 percent rating.  

The Veteran was initially examined by VA in December 2016 to assess the current severity of his left knee disability.  At that time, the VA examiner noted the diagnoses of medial meniscus tear and arthritis of the left knee.  The Veteran reported his left knee is “loose” and bothers him when he tries to turn.  He denied flare-ups and functional loss/impairment.  Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees, with pain at the endpoint of flexion resulting in functional loss.  There was no evidence of pain on weight-bearing but there was objective evidence of localized tenderness or pain on palpation and crepitus.  There was also evidence of painful passive motion, resulting in painful flexion past 110 degrees.  The Veteran able to perform repetitive use testing with at least three repetitions without additional loss in range of motion.  The examiner acknowledged that the examination was not conducted immediately after repetitive use but stated that it was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner also noted that pain significantly limited functional ability with repeated use over a period of time, but was unable to provide a range of motion estimate in the current setting.  There was no evidence of decreased muscle strength, muscle atrophy, or ankylosis.  There was also no evidence of recurrent subluxation, lateral instability, effusion, or recurrent patellar dislocation.  The examiner again noted the prior medial meniscus tear of the left knee and indicated that the Veteran underwent surgery (meniscectomy) for this disability in 2010.  The examiner indicated that the resulting scar was neither painful nor unstable, or having a total area equal to or greater than 39 square centimeters.  No other objective findings were noted.  

Parenthetically, the Board notes that the December 2016 VA examiner indicated that there was degenerative arthritis of the right knee by checking the box next to it.  However, the Board finds this is simply a clerical error as the subsequent explanation specifically noted arthritis of the LEFT knee.  

The Veteran was next examined by VA in June 2018 to assess the current severity of his left knee disability.  At that time, the Veteran reported his left knee was getting stiffer and did not feel as strong as it used to be, particularly when walking up the stairs.  He reported swelling, and that it gave out one time, but denied locking.  The Veteran indicated he was not using an assistive device, and his only treatment was over the counter pain medications.  He denied flare-ups but reported functional loss/impairment in the limitations described above.  Range of motion testing revealed flexion to 100 degrees and extension to 0 degrees, with pain noted on flexion resulting in functional loss.  There was evidence of pain on weight-bearing and objective evidence of localized tenderness or pain on palpation, but no evidence of crepitus.  There was also no evidence of painful passive motion, or when non-weightbearing.  The Veteran able to perform repetitive use testing with at least three repetitions without additional loss in range of motion.  The examiner acknowledged the examination was not conducted immediately after repetitive use and stated it was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner also noted that pain significantly limited functional ability with repeated use over a period of time, but was unable to provide a range of motion estimate in the current setting.  As rationale, the examiner stated there was no change in the range of motion with repetitive motion; therefore, information regarding significant limitation due to pain with repetitive use of the joint over a period of time without resorting to mere speculation could not be provided.  There was no evidence of decreased muscle strength, muscle atrophy, or ankylosis.  There was also no evidence of recurrent subluxation, lateral instability, effusion, or recurrent patellar dislocation.  The examiner again noted the prior medial meniscus tear of the left knee and indicated the resulting scar was neither painful nor unstable, or having a total area equal to or greater than 39 square centimeters.  No other objective findings were noted.  

The Board has also reviewed the Veteran’s available treatment records for the relevant period on appeal.  However, the VA treatment records note only the Veteran’s report of pain in the left knee and continued treatment.  There are no range of motion findings or other objective indications that would support the assignment of additional separate ratings for the left knee.

Based on the evidence as noted above, the Board finds that the Veteran’s left knee disability warrants the currently assigned 20 percent rating.  Specifically, the evidence shows that the Veteran has consistently reported pain.  

As 20 percent is the highest rating available under Diagnostic Code 5258, the Board has also considered whether the Veteran is entitled to separate ratings under other potentially relevant diagnostic codes.  Of note, Diagnostic Code 5259, impairment of the meniscus, only provides a 10 percent rating and is not more advantageous to the Veteran.  The Board also notes that there is no evidence of ankylosis of the left knee (Diagnostic Code 5256), instability or subluxation (Diagnostic Code 5257), or genu recurvatum (Diagnostic Code 5263).  As such, those codes need not be discussed further.

Pursuant to limitation of flexion under Diagnostic Code 5260, the Board finds that a separate compensable rating is not warranted, as his flexion has been limited to, at most, 100 degrees, even following repetitive use testing.  See June 2018 VA Examination.  In order to warrant a 10 percent rating, flexion must be limited to 45 degrees.  The treatment records similarly do not include any range of motion findings that would support the assignation of separate rating based on limitation of flexion.

The Board has also considered whether a separate rating based on limitation of extension pursuant to Diagnostic Code 5261 is warranted.  However, the record shows the Veteran’s extension has been 0 degrees for the left knee throughout the pendency of the appeal.  Therefore, a separate 10 percent rating is also not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Additionally, whether the Veteran’s left knee disability has resulted in a level of functional loss in range of motion such that a separate 10 percent rating may be assigned has also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, the left knee has been characterized by pain and some limitation of flexion.  In fact, the December 2016 and June 2018 VA examiners also noted that pain significantly limited functional ability with repeated use over time in left knee.  However, the Veteran’s flexion was found to be to, at worse, 100 degrees, even considering the pain and functional ability.  While the rating schedule is intended to allow for compensation for painful motion of a joint, the evidence does not reflect functional loss that is not already contemplated by the assigned rating of 20 percent for the left knee meniscal disability, which specifically contemplates pain.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  Moreover, even considering his reports of pain, his flexion has been limited to, at most, 100 degrees as noted in the June 2018 VA examination, which is well in excess of the 30-degree limitation as required for the next higher 20 percent rating.

Concerning the holdings in Sharp and Correia, the Board notes that the Veteran denied experiencing flare-ups.  Further, pain on passive motion was noted at the December 2016 VA examination, and pain on weight-bearing was noted at the June 2018 VA examination.  Regardless, even accepting that the Veteran experiences some additional limitations as a result of pain with weight-bearing/non-weight-bearing motion throughout the appeal period, the objective findings do not show that the Veteran has even come close to approximating limitation of flexion to 45 degrees in the left knee.

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements and those of his wife and friend/coworker submitted in support of his claim attesting to the presence of pain due to his left knee disability.  In this regard, the Veteran, his wife, and friend/coworker are competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing chronic pain and limitations due to that pain in the knee and the observations of the impact of that pain on the Veteran.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran is competent to provide such statements, and the Board finds the statements to be credible.  With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person.  Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107(b).

7. Surgical scar on the left knee

Regarding the abovementioned scar, the Board finds a separate noncompensable rating is warranted, effective from November 14, 2016, the date of receipt of the claim for an increased rating for the left knee disability.  

During the pendency of this appeal, VA published a final rule amending its regulations on skin disabilities effective August 13, 2018.  Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so.  See VAOGCPREC 7-2003.  The Board will therefore evaluate the Veteran’s scars under both the old and new criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Thus, the Board will discuss both periods of regulations in order to determine if a compensable rating is warranted under the applicable scar criteria during that time period. 

Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. 

Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.).  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). 

Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). 

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent rating is assigned for five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). 

Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). 

Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage.  Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling.  Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling.  Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling.  Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). 

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage.  A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated at 10 percent.  38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). 

Diagnostic Code 7804 provides ratings for scars that are unstable or painful.  One or two scars that are unstable or painful are rated as 10 percent disabling.  Three or more scars that are unstable or painful are rated as 20 percent disabling.  Five or more scars that are unstable or painful are rated as 30 percent disabling.  Note (1) to DC 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). 

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). 

Based on the evidence as discussed above, a noncompensable rating is warranted for the surgical scar on the left knee under Diagnostic Code 7805 for other disabling effects of scars.  

In this respect, the evidence of record does not indicate that the Veteran’s surgical scar is deep and nonlinear, or that it involves a total area of at least 6 square inches (39 sq. cm) (Diagnostic Code 7801); is superficial and nonlinear, and covers an area or areas of 144 square inches (929 sq. cm) or greater (Diagnostic Code 7802); or, is unstable or painful (Diagnostic Code 7804).  See December 2016 and June 2018 VA Examinations.  

Therefore, resolving all reasonable doubt in the Veteran’s favor, a separate noncompensable rating of the surgical scar on the left knee is warranted.   

8. Lumbar spine disability

The Veteran’s lumbar spine disability has been rated as 40 percent disabling under Diagnostic Code 5243 since April 29, 2013.  Diagnostic Code 5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243.

In the present case, however, there are limited bases for a rating in excess of 40 percent.  This is the highest rating available based upon limitation of motion.  For a higher rating, there must be evidence of unfavorable ankylosis of the thoracolumbar spine (Diagnostic Codes 5237-5242) or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (Diagnostic Code 5243).  Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes.  See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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.  A review of the relevant evidence of record, notably including VA treatment records and the reports of VA examinations conducted in December 2016 and June 2018, reveals no evidence of either ankylosis or incapacitating episodes as would support a higher rating.  There is accordingly no basis for an increase in the underlying 40 percent rating.

This does not end the Board’s inquiry, however.  In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.  Here, there is no indication of bowel or bladder impairment as a result of the lumbar spine disability.  The Veteran is already in receipt of a separate rating for right lower radiculopathy, presently rated at 10 percent and detailed below.  

Further, the Board finds that the evidence shows the Veteran is entitled to a separate rating for left lower extremity radiculopathy.  Here, the Veteran was first clinically diagnosed with radiculopathy of the left lower extremity during the June 2018 VA examination.  The examiner concluded that the left lower extremity was mild in nature.  There is no competent evidence to suggest that this disability is more than mild in degree, as would support a 20 percent rating.  Thus, the Board finds that the radiculopathy of the left lower extremity is best rated as mild, and a separate rating of 10 percent, but not higher, is warranted.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  

9. Right lower extremity radiculopathy 

The Veteran’s right lower extremity radiculopathy has been rated at 10 percent pursuant to Diagnostic Code 8520 for the entire period on appeal.  He is seeking a higher rating.  At this juncture, the Board notes that neither the Veteran nor his attorney have presented any arguments regarding the severity of the service-connected radiculopathy.  

Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis.  A 20 percent disability rating is assigned for moderate incomplete paralysis.  If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.”

The December 2016 and June 2018 VA examiners both provided diagnoses of mild radiculopathy the sciatic nerve in the right lower extremity.  Further, while the June 2018 VA examiner noted moderate intermittent pain in the right lower extremity, the overall severity was found to be mild.  

The VA treatment records do not contain any evidence that would warrant assigning a rating in excess of 10 the right lower extremity.  While these records contain some references to symptoms of radiculopathy and the lower extremities, there is no indication the right lower extremity radiculopathy presents as more severe than the findings of the December 2016 and June 2018 VA examiners.   

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his right lower extremity radiculopathy as made during the VA examinations.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain or numbness in his leg.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  The Veteran’s reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating.  With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person.  Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

10. Somatic symptom disorder with predominant pain

The Veteran is currently rated at 50 percent for his somatic symptom disorder with predominant pain.  However, he believes he is entitled to a higher 70 or 100 percent rating for the entire appeals period.  

The Veteran’s is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9422.  When rating psychiatric disorders, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  

Under the General Rating Formula, a 50 percent rating is assigned when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9422.

The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.  Id.

The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

VA implemented the Diagnostic and Statistical Manual Of Mental Disorders, Fifth Edition (DSM-5), effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014.  See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014).  As the Veteran’s increased rating claim was originally certified to the Board in August 2017, the earlier DSM-IV edition is not for application in this case. As relevant to this case, in Golden v. Shulkin, 29 Vet. App. 221, 226 (2018), the United States Court of Appeals for Veterans Claims (Court) noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-5 eliminated Global Assessment of Functioning (GAF) scores, which the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness, because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” Id.  Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court held that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.  Id.  Thus, the Board will afford no probative value to the GAF scores mentioned in the record, and does not consider them for purposes of assigning a psychiatric rating in this appeal.

In relevant part, the Veteran was examined by VA in December 2016 in connection with his claim of service connection for this disability.  At that time, the VA examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  Additional symptoms noted included decreased libido, fatigue, and anhedonia.  The VA examiner indicated that the Veteran was presented with normal speech, was alert and oriented, with no evidence of delirium.  His mood was dysphoric, and affect was mildly constricted, consistent with mood.  There was no evidence of psychosis, auditory or visual hallucinations, delusions, or a history of hypomania or manic symptoms.  The VA examiner concluded that the Veteran suffers from somatic symptom disorder with predominant pain, secondary to the service connected disabilities.  The examiner noted the record includes notations of depression going back at least 10 years due the chronic back pain complaints.  The overall severity level, however, was found to be occupational and social impairment due to mild or transient symptoms.

In support of his appeal for a higher initial rating, the Veteran submitted a private Mental Health Conditions DBQ and an accompanying psychological assessment, dated in September 2020.  At that time, in addition to the symptoms noted above in the December 2016 VA Mental Health Conditions DBQ, the private psychologist found mild memory loss, impaired judgment, impaired impulse control, and intermittent inability to perform activities of daily living.  The private psychologist also noted that the Veteran’s symptoms include a chronic focus on physical symptoms of pain that cause emotional distress, a persistently high level of anxiety, and pain that significantly disrupts his life.  He also reported isolation tendencies and homicidal ideations towards others due to his pain.  The overall severity of the psychiatric disability was found to be occupational and social impairment with deficiencies in most areas.

VA treatment records also show treatment for the Veteran’s psychiatric disability on a consistent basis, to include the use of medication to manage his symptoms.  Further, a June 2017 VA treatment record noted that the Veteran denied suicidal ideation, but he also stated that he felt the world would not mind if he were to wake up dead.  

The Board also acknowledges the Veteran’s reported symptomatology as noted in the in a statement submitted by his wife, dated in December 2019 and submitted to VA in December 2020.  This statement indicated the Veteran had previously exhibited violent tendencies towards his wife, anger, road rage, and lashing out.  The Veteran’s wife also stated she was concerned about violence towards others, such as with their grandchild.  

Following a review of the lay and medical evidence, the Board concludes that the preponderance of the evidence supports a finding that the Veteran’s somatic symptom disorder is productive of the higher 70 percent rating.  In addressing 38 C.F.R. § 4.130, the United States Court of Appeals for Veteran’s Claims held in Bankhead that “... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a [V]eteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  In light of the holding in Bankhead, the Board finds that the Veteran’s report of suicidal thoughts, however fleeting, as noted in the June 2017 VA treatment record, is controlling probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas.

Furthermore, the evidence shows the Veteran’s somatic symptom disorder has been manifested by depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; impaired impulse control, such as unprovoked irritability with periods of violence; homicidal thoughts towards others; avoidance practices; intermittent inability to perform activities of daily living; chronic focus on pain; decreased libido; anhedonia; and, fatigue.  See December 2016 VA Mental Health Conditions DBQ; September 2020 Private Mental Health Conditions DBQ and Psychological Assessment; and, December 2020 Statement from the Veteran’s Wife.   

The Board also notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443.  When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms.  Vazquez–Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  

The Board further finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period.  The evidence does not show that the Veteran has total occupational and social impairment.  The Veteran has never attested to suffering from delusions, hallucinations, gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or suffering from more than mild memory loss.  In fact, to the contrary, he has repeatedly denied the majority of the symptoms above required for the higher 100 percent rating.  

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements found in the record.  In this regard, the Veteran is certainly competent to report how he believes his psychiatric disability has affected his life, including describing his symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  However, the Board finds attaches more probative value the medical opinions provided by the VA and private examiners, all with appropriate training and credentials, in rendering a decision as to the severity of the Veteran’s somatic symptom disorder based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his examinations conducted throughout the appeal period. 

Therefore, resolving all reasonable doubt in the Veteran’s favor, an initial rating of 70 percent, but no higher, is warranted for the entire period on appeal.  In reaching this determination, the Board notes that this appeal raises no additional rating issues, other than the TDIU claim addressed below.  Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).  

11. Effective date: Somatic symptom disorder with predominant pain

The Veteran is seeking entitlement to an effective date earlier than November 14, 2016 for the grant of service connection for somatic symptom disorder with predominant pain.  At this juncture, the Board notes neither the Veteran nor his attorney have submitted any argument as to why it is their belief an earlier effective date is warranted.  

The provisions governing the assignment of the effective date of a claim for compensation or an increased rating are set forth in 38 U.S.C. §§ 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  

The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later.  38 C.F.R. § 3.400.

The VA administrative claims process recognizes formal and informal claims.  A formal claim is one that has been filed in the form prescribed by the Secretary.  38 C.F.R. § 3.151.  Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155.

The Board notes that effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form.  The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats.  The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. § 3.1(p), 3.151, 3.155).  The amendments apply only to claims filed on or after March 24, 2015.  Here, Veteran’s claim was received by VA after that date, and, as such, these regulations are controlling.  

Here, the Veteran filed a claim of entitlement to service connection for a “mental condition” on November 14, 2016.  This claim was granted in the February 2017 rating decision presently on appeal, an assigned an initial rating of 50 percent, effective from November 14, 2016.  The Veteran has not asserted, nor does the record otherwise reflect, that he filed a claim of entitlement to service connection for this disorder earlier than November 14, 2016.  

To the extent the Veteran may believe he is entitled to service connection for this disability upon his separation from service, the Board notes that having a disability is not equivalent to actually filing a claim for that disability.  So, arguably, in this case, the Veteran’s diagnosed psychiatric disability was undoubtedly present prior to the date of his claim, which would be the date his entitlement arose.  The provisions of 38 U.S.C. § 5110 refer to the date an “application” is received, and “date of receipt” means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).

Here, the effective date for this associated disability can be no earlier than the date of receipt of the claim, which was November 14, 2016.  This date is the later of the date entitlement arose and date of the claim.  Consequently, the Board finds that entitlement to an effective date earlier than November 14, 2016, pursuant to 38 C.F.R. § 3.400(o)(1) is not warranted.  As the preponderance of the evidence is against the claim, there is no doubt to resolve.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  The claim is denied. 

REASONS FOR REMAND

1. Sleep disorder 

The Veteran is seeking entitlement to service connection for a sleep disorder that he believes is due to his service.  Alternatively, the Veteran and his attorney have argued that the Veteran has a sleep disorder that is due to or aggravated by the service-connected somatic symptom disorder with predominant pain.  See December 2020 Attorney Correspondence.  

The Veteran’s service treatment records are completely silent regarding any diagnosis of a sleep disorder.  Following service, VA treatment records do show reports of difficulty sleeping, but there is no indication of a diagnosed sleep disorder.  The report of the December 2016 VA Mental Health Conditions DBQ noted chronic sleep impairment.  Similarly, the private psychological assessment dated in September 2020 also found that the Veteran had chronic sleep impairment.  

Nevertheless, the question remains as to whether the Veteran has a sleep disorder that is separate and distinct or, alternatively, a manifestation of the currently service-connected psychiatric disability.  As such, a remand is required.  

2. Headaches 

The Veteran is seeking entitlement to service connection for headaches that he claims are either directly due to service or, alternatively, due to or aggravated by his service-connected psychiatric disability.  See December 2020 Attorney Correspondence.  In support of his claim, the Veteran has submitted medical treatise evidence attesting to a correlation between headaches and psychiatric disorders, generally.  

In June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, 31 Vet. App. 233 (2019), which affects the Veteran’s claim.  In Ward, the Court held that secondary service connection is warranted for any incremental increase in disability and any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions, regardless of its permanence.  

As the VA treatment records list “headaches” as a currently diagnosed disorder, the Board cannot make a fully-informed decision on this issue because there is no etiological opinion of record specifically concerning the Veteran and claimed headaches disorder.  As such, a remand is warranted.  

3. TDIU

The Board notes that the Veteran filed a VA Form 21-8940 in December 2020 asserting that all his service-connected disabilities impact his ability to secure and follow employment pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  Further, the Veteran has submitted statements from his wife and a friend/co-worker attesting to his inability to work due to his service-connected back disability, bilateral lower extremity disabilities, knee disability, and psychiatric disability.  Finally, during the September 2020 private psychological assessment, it was noted that the Veteran was no longer employed due to limitations resulting from his service-connected disabilities.  

However, the issue of entitlement to a TDIU cannot be adjudicated until the service connection issues are addressed as they are intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183(1991).  Thus, a remand is warranted as to this issue. 

The matters are REMANDED for the following action:

1. Obtain any available VA or private treatment records not currently associated with the claims folder dated from March 2020 to the present. 

2. Schedule the Veteran for a VA examination so as to determine the nature and etiology of the diagnosed headaches disorder.  A complete rationale for all opinions offered must be provided. 

The examiner is asked to provide an opinion on the following, with a full rationale: 

(a.) Whether the Veteran’s headaches disorder is at least as likely as not (a 50 percent or greater probability) related to his active service. 

(b.) Whether it is at least as likely as not that the headache disorder was caused by the service-connect somatic symptoms disorder, yes or no? 

(c.) Is it at least as likely as not that the Veteran’s headache disorder underwent any aggravation (incremental increase in disability, regardless of its permanence), due to: 

1.	the psychiatric disorder, yes or no? 

2.	medicine taken for his psychiatric disorder, if applicable, yes or no? 

The term “incremental increase in disability” means additional impairment of earning capacity.  Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. 

The term “at least as likely as not” does not mean “within the realm of medical possibility.”  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion.  The medical treatise literature provided by the Veteran and his attorney in rendering the above requested opinions should also be considered. 

3. Schedule the Veteran for a VA examination to determine the nature and etiology of any clinically diagnosed sleep disorder.  

The examiner is asked to address the following:

(a.) Whether the Veteran has a sleep disorder that is either a manifestation of the Veteran’s service-connected psychiatric disability or is a separate and distinct disorder.   

(b.) If the Veteran has a sleep disorder that is a separate and distinct disorder, then the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) due to his service.  

(c.) Whether it is at least as likely as not that the sleep disorder was caused by the service-connect somatic symptoms disorder, yes or no? 

(d.) Is it at least as likely as not that the Veteran’s sleep disorder underwent any aggravation (incremental increase in disability, regardless of its permanence), due to: 

1.	the psychiatric disorder, yes or no? 

2.	medicine taken for his psychiatric disorder, if applicable, yes or no? 

The term “incremental increase in disability” means additional impairment of earning capacity.  Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. 

The term “at least as likely as not” does not mean “within the realm of medical possibility.”  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion.  The medical treatise literature provided by the Veteran and his attorney in rendering the above requested opinions should also be considered. 

4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full.  If any development is incomplete, appropriate, corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Berry, 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.