Citation Nr: 21008361 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-23 049A DATE: February 16, 2021 ORDER Entitlement to an effective date prior to August 9, 2012, for service connection for arthritis of the back, to include whether a February 1971 rating decision contained clear and unmistakable error (CUE), is denied. Entitlement to an effective date prior to August 9, 2012, for service connection for right hip limitation of extension, to include whether a February 1971 rating decision contained clear and unmistakable error (CUE), is denied. Entitlement to an effective date prior to August 9, 2012, for service connection for right hip limitation of flexion, to include whether a February 1971 rating decision contained clear and unmistakable error (CUE), is denied. Entitlement to an effective date prior to April 2, 2012, for an award of a total disability rating based on individual unemployability (TDIU) is denied. A 70 percent, but not higher, evaluation for posttraumatic stress disorder (PTSD) for the period prior to October 21, 2019, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to rating in excess of 10 percent for intraabdominal injury is denied. Entitlement to an initial rating in excess of 10 percent for left thigh scars is denied. Entitlement to an initial rating in excess of 10 percent prior to November 6, 2020, for right thigh scars, and in excess of 30 percent, thereafter, is denied. Entitlement to an initial rating in excess of 10 percent for thorax scars is denied. A separate 10 percent, but not higher, rating for a muscle injury relating to residuals of a shell fragment wound of the right thigh is granted, beginning August 17, 2012, subject to the law and regulations governing the payment of monetary benefits. A separate 10 percent, but not higher, rating for a muscle injury relating to residuals of a shell fragment wound of the left thigh is granted, beginning August 17, 2012, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a skin rash of the right thigh, right hip, and right chest, to include as a result of exposure to herbicide agents, is remanded. Entitlement to an initial rating in excess of 10 percent for arthritis of the back prior to October 2, 2020, and in excess of 20 percent, thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for right hip limitation of extension is remanded. Entitlement to an initial compensable rating for right hip limitation of flexion is remanded. Entitlement to a compensable rating for right little finger limitation of motion is remanded. Entitlement to an effective date prior to April 2, 2012, for the grant of TDIU is remanded. FINDINGS OF FACT 1. The Veteran submitted an informal claim for entitlement to service connection for a lumbar spine disability and entitlement to service connection for a right hip joint disability which was received by VA on August 9, 2012. 2. Service connection for arthritis in the back, post shrapnel injury, was granted in a March 2013 rating decision, and an effective date of August 9, 2012, was assigned. 3. Service connection for right hip limitation of extension, post shrapnel injury, and service connection for right hip limitation of flexion, post shrapnel injury, was granted in a March 2013 rating decision, and an effective date of August 9, 2012, was assigned. 4. The February 1971 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. 5. The evidence of record does not contain any communication received from the Veteran that could be considered a claim for entitlement to service connection for a lumbar spine disability or entitlement to service connection for a right hip joint disability prior to August 9, 2012. 6. There is no basis to assign an earlier effective for the claims for service connection noted above, and there is otherwise no prior unadjudicated claim for TDIU that has been identified by the Veteran or contained in the record. 7. The evidence of record indicates that the Veteran’s PTSD was productive of social and occupational impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood prior to October 21, 2019. 8. At no point prior to October 21, 2019, had the Veteran’s PTSD resulted in total social and occupational impairment. 9. The Veteran’s intraabdominal injury has not shown symptom combinations productive of moderately severe impairment of health. 10. The Veteran’s left thigh scarring has been characterized by pain, but not instability. 11. Prior to November 6, 2020, the Veteran’s right thigh scarring was been characterized by pain, but not instability. 12. Beginning November 6, 2020, the Veteran’s right thigh scarring has been characterized by five or more painful scars, but not instability. 13. The Veteran’s thorax scarring has been characterized by pain, but not instability. 14. Beginning August 17, 2012, the evidence demonstrates that the Veteran has muscle injury relating to residuals of a shell fragment wound of the right thigh that is manifested by no more than a moderate muscle injury disability to Muscle Group XIV. 15. Beginning August 17, 2012, the evidence demonstrates that the Veteran has muscle injury relating to residuals of a shell fragment wound of the left thigh that is manifested by no more than a moderate muscle injury disability to Muscle Group XIV. CONCLUSIONS OF LAW 1. The February 1971 rating decision did not contain clear and unmistakable error. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (a) (2019). 2. The requirements for an effective date prior to August 9, 2012, for the award of service connection for arthritis in the back, post shrapnel injury, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 3. The requirements for an effective date prior to August 9, 2012, for the award of service connection for right hip limitation of extension, post shrapnel injury have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 4. The requirements for an effective date prior to August 9, 2012, for the award of service connection for right hip limitation of flexion, post shrapnel injury have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 5. The requirements for an effective date prior to April 2, 2012, for the award of TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 6. The criteria for a rating of 70 percent, but not greater, for PTSD prior to October 21, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2019). 7. The criteria for a rating in excess of 10 percent for intraabdominal injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.114, Diagnostic Code 7301 (2019). 8. The criteria for a rating in excess of 10 percent for left thigh scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7804 (2019). 9. The criteria for a rating in excess of 10 percent for right thigh scars prior to November 6, 2020, and in excess of 30 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7804 (2019). 10. The criteria for a rating in excess of 10 percent for thorax scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7804 (2019). 11. The criteria for a separate 10 percent, but not higher, rating for muscle injury relating to residuals of a shell fragment wound of the right thigh have been met, beginning August 17, 2012. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.73, Diagnostic Code 5314 (2019). 12. The criteria for a separate 10 percent but not higher, rating for muscle injury relating to residuals of a shell fragment wound of the left thigh have been met, beginning August 17, 2012. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.73, Diagnostic Code 5314 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1967 to February 1970. He was injured in a land mine explosion and awarded a Purple Heart. In May 2018, a Travel Board hearing was held before the undersigned. A transcript of that hearing is of record. This claim was previously before the Board in August 2018, at which time it was remanded for further development. The Board notes that the adjudication of these increased rating claims has resulted in a more recent increased staged rating for PTSD after October 12, 2019, for arthritis of the back after October 2, 2020, and for right thigh scars after November 6, 2020. The identification of this issue has therefore been modified accordingly. The August 2018 Board decision remanded the issues of entitlement to service connection for sleep apnea, entitlement to service connection for bilateral hearing loss, entitlement to service connection for hypertension, and entitlement to service connection for a heart disorder. A December 2019 rating decision granted the Veteran’s claims, and he did not file a notice of disagreement with respect to the assigned ratings. As such, they are no longer before the Board. Although the issue of entitlement to a compensable rating for right little finger limitation of motion was the subject of a more recent substantive appeal, it has now been merged with the instant appeal, and will be addressed in the Remand portion of this decision. Finally, the Schedule for Rating Disabilities was amended to revise the portion of the schedule that addresses muscle injuries, and the final rule went into effect on February 7, 2021. Specifically, the changes added two new Diagnostic Codes to 38 C.F.R. § 4.73. The Board notes that there were no changes to the rating criteria that impact the instant decision. Earlier Effective Date The Veteran maintains that he is entitled to an effective date prior to August 9, 2012, for the grant of service connection for arthritis in the back, post shrapnel injury, service connection for right hip limitation of extension, and service connection for right hip limitation of motion. Specifically, he contends that these conditions were present in service and the service medical records constituted a claim. As such, the conditions should be afforded an effective date of February 11, 1970. Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A “claim” is defined in the VA regulations as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1 (p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155 (a) (2019). In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). Of note, 38 C.F.R. § 3.157, pertaining to what constitutes an informal claim, has been deleted from the most recent iteration of the CFR as VA no longer accepts informal claims. However, it was in effect at the time the Veteran filed his claim for entitlement to service connection for a lumbar spine disability and entitlement to service connection for a right hip joint disability and is therefore discussed herein. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C. § 7104 (a); Servello. The Court has held, however, that the Board is not required to “conjure up issues that were not raised by the appellant.” Brannon v. West, 12 Vet. App. 32 (1998). Importantly, the Veteran has not asserted that a claim was filed prior to August 9, 2012, neither during Board hearing testimony in May 2018, nor in statements filed in support of the present claim. While 38 C.F.R. § 3.157 allows reports of examination or hospitalization to be considered as an informal claim in some instances, such specifically relates to cases involving an earlier effective date for increased ratings, and does not apply to cases in which the issue at hand relates to an earlier effective date for the grant of service connection. See 38 C.F.R. § 3.157(b). The Board has carefully reviewed all of the evidence of record but finds that the assignment of an effective date prior to August 9, 2012, is not warranted for the grant of service connection for arthritis of the back, right hip limitation of extension, or right hip limitation of flexion. There is no indication that the Veteran filed a claim for entitlement to service connection for a lumbar spine disability or entitlement to service connection for a right hip joint disability, either formally or informally, prior to a formal claim received on August 9, 2012. As no claim for service connection was received prior to this date, there is no basis for assignment of an effective date prior to August 9, 2012. See 38 C.F.R. § 3.400 (r). The Board is sympathetic to the Veteran’s claim. Unfortunately, the Board is ultimately bound by the law passed by Congress, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As discussed, the primary requirement for the assignment of an effective date is the receipt of a claim by VA. Clear and Unmistakable Error (CUE) A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a); 3.400(k). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). The Board notes that VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R. § 20.1403 (d)(2); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”). Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE. See 38 C.F.R. § 20.1403 (d)(3); see also Damrel, 6 Vet. App. at 246. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). There is a three prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992). Furthermore, in determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there is no error within the meaning of 38 C.F.R. § 3.105 (a). Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000). The Veteran argues the presence of CUE in a February 1971 decision. That decision granted service connection for several disorders arising from an in-service land mine explosion with an effective date of February 11, 1970, the day after the Veteran was discharged. The February 1971 decision did not grant service connection for a back disorder, right hip limitation of flexion, or right hip limitation of extension. The Veteran now argues that failure to grant service connection for these disorders constitutes CUE. Regarding his back disorder, in his March 2014 notice of disagreement, the Veteran states that the effective date should be February 11, 1970, because “[t]his condition was present in service and the service medical records constituted a claim.” In his June 2016 VA Form 9, the Veteran argues that VA’s failure to adjudicate his back claim immediately after discharge was clear and unmistakable error because of the shrapnel in his back. In his December 2016 VA Form 9, the Veteran’s states that he should receive an earlier effective date for his back disorder because “[t]he shrapnel was present in his body upon discharge.” Regarding his hip disorders, in his March 2014 notice of disagreement the Veteran also states that the effective date should be February 11, 1970, because these conditions were “present in service and the service medical records constituted a claim.” In his June 2016 VA Form 9, the Veteran argues that VA’s failure to adjudicate his hip claims immediately after discharge was CUE because “[t]his injury is a manifestation of combat trauma and was present during the original adjudication of [the Veteran’s] claims.” In his December 2016 VA Form 9, the Veteran again states that he should receive an earlier effective date for his hip disorders but does not provide a specific argument as to why. The Veteran does not contend that he submitted a claim for service connection a lumbar spine disability or a claim for service connection for a right hip disability prior to August 2012. Instead, the crux of his contention centers on the failure of the February 1971 rating decision to address his disabilities which were present at the time of separation. The Veteran essentially asserts CUE in the February 1971 rating decision by alleging that the VA did not investigate the Veteran’s back and hip conditions based upon service treatment records showing an injury in service. With respect to the Veteran’s argument that not providing the Veteran with a VA examination is the basis of CUE, such an argument alleges a breach of VA’s duty to assist the Veteran in providing him an examination which, as discussed above, cannot constitute CUE. Crippen v. Brown, 9 Vet. App. at 418. The current assertions that the RO did not provide a VA examination to investigate any back or hip conditions or improperly weighed the evidence of record at the time of the February 1971 rating decision cannot constitute CUE. In sum, there was no undebatable or manifest error on the part of the RO such that the February 1971 rating decision would have been manifestly different but for the error. Accordingly, the appeal must be denied. Entitlement to an effective earlier than April 2, 2012, for entitlement to TDIU As the Board has found no basis to assign an earlier effective as requested above, and there is otherwise no prior unadjudicated claim for TDIU that has been identified by the Veteran or contained in the record, the Board finds that entitlement to an earlier effective date than April 2, 2012, is also not warranted. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). PTSD Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. A 50 percent rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. Finally, a 100 percent rating is assigned for 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the term ‘such as’ in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his or her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” When evaluating a mental disorder, the Board shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Entitlement to an initial rating in excess of 50 percent for PTSD prior to October 21, 2019 The Veteran received a VA examination in August 2012 and the examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran expressed problems with anxiety in social situations and panic attacks that were so bad that he went to the emergency room thinking that he was having a heart attack. He also had three driving under the influence (DUI) charges due to his drinking to deal with his PTSD, with the last charge coming in 2010. The Veteran had been married for 40 years and described his marriage as “pretty great.” He also had two children and four grandchildren that he saw. Upon examination, the examiner noted depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The Veteran submitted correspondence in August 2012 indicating that he had been experiencing nightmares about some of his experience from service. For the past 12 years, he experienced panic or anxiety attacks and had been taken him to the emergency room for treatment. At the May 2018 Board hearing, the Veteran’s wife testified with regards to the Veteran’s disturbances and recounted that watching the news could turn his mood very quickly. They had difficulty in public crowds and the Veteran’s wife noted that their grandkids were starting to recognize that the Veteran did not like going to crowded places. The Veteran testified that he stayed home more than he used to; when he went out, he surrounded himself with other veterans who shared similar experiences, but they did not talk about their time in the military. He also had problems with his memory and indicated he did not have any confrontations with his supervisors when he was employed. Considering the foregoing, the Board finds that the Veteran is entitled to a 70 percent, but not higher, rating for PTSD, prior to October 21, 2019. Initially, the Board notes that the Veteran was married for over 40 years and had two children and four grandchildren. However, the competent, credible lay evidence indicates that his level of attentiveness with regard to his family had declined, and while he had not demonstrated a complete inability to establish and maintain effective relationships, the Veteran’s statements with regards to his interpersonal relationships suggests a continual challenge to maintain such relationships. Consequently, giving the appellant the benefit of the doubt, that Board finds that a 70 percent rating is warranted for the Veteran’s PTSD prior to October 21, 2019. The Veteran indicated that a grant of a 70 percent rating for his PTSD disability would satisfy his appeal for that issue. See March 2014 notice of disagreement, June 2016 VA Form 9. Therefore, the Board finds that this grant represents a complete grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Scarring Under Diagnostic Code 7804, one or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates 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, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Entitlement to an initial rating in excess of 10 percent for left thigh scars Entitlement to an initial rating in excess of 10 percent prior to November 6, 2020 for right thigh scars, and in excess of 30 percent thereafter Entitlement to an initial rating in excess of 10 percent for thorax scars The Veteran received a VA examination in August 2012 and the examiner noted seven scars on the thorax, five scars on the right thigh, and six scars on the left thigh. None of the scars were painful or unstable. The combined total area of the superficial non-linear scars of the anterior trunk were 0.25 square centimeters, and the combined total area of the deep non-linear scars of the right upper extremity and left lower extremity were 9.0 square centimeters and 12.4 square centimeters, respectively. None of the scars were burn scars. At the May 2018 Board hearing, the Veteran’s wife testified that the Veteran had scars all over him. The Veteran argued that his scars should have been rated as an injury to the right and left thigh muscle groups because they looked like “a crater on the moon.” Pursuant to the August 2018 Board remand, the Veteran received a VA examination in November 2019 and the examiner noted 10 scars on the anterior right thigh with seven that were tender to palpation and five that had underlying soft tissue damage. There were six scars on the left thigh, and one scar on the right thorax. The combined total area of the scars without underlying tissue damage was 4.5 square centimeters for the right lower extremity, 18.5 square centimeters for the left lower extremity, and 24.80 centimeters for the anterior trunk. The combined total area for scars without underlying tissue damage was 83 square centimeters for the right lower extremity. Due to the extent and number of scars, the examiner found that it was “difficult to impossible” to try to accurately compare wounds/scars from previous examinations. The Veteran complained of pain in the affected areas, but the examiner was unable to find any objective evidence of tenderness or functional impairment. The wounds were healed, and they left scars behind. As noted, Diagnostic Code 7804 provides a maximum rating of 10 percent for one or two scars that are unstable or painful. Another 10 percent can be added if the scars are both unstable and painful, yet the competent medical evidence does not show that the Veteran’s scars are unstable. The Board finds the examinations highly probative of the Veteran’s claim and concludes that an evaluation higher than 10 percent is not warranted. The competent and credible medical records indicate that the Veteran has scarring on his thighs and thorax that are subjectively painful but not unstable. Although the VA examiners noted multiple scars, they were all considered well-healed. A 20 percent evaluation is not warranted because he does not have three or four scars that are unstable or painful, and a 30 percent evaluation is not warranted because he does not have five or more scars that are unstable or painful. Thus, the Veteran’s left thigh scars and thorax scars are not entitled to an evaluation in excess of the currently assigned 10 percent under Diagnostic Code 7804, nor are the right thigh scars entitled to an evaluation in excess of the currently assigned 10 percent under Diagnostic Code 7804 prior to November 6, 2020. With regard to a rating in excess of 30 percent for right thigh scars beginning November 6, 2020, the evidence does not support a higher rating. The Board acknowledges the Veteran’s contentions that his scars are painful, a fact that has been consistently shown by the evidence of record. Notably, he is receiving the highest rating possible of 30 percent under Diagnostic Code 7804 to compensate for his pain. However, to receive an additional 10 percent under Diagnostic Code 7804, his right thigh scars do not satisfy the criteria as none of the scars were unstable. Given the criteria is not satisfied, the Veteran’s claim is denied for a rating in excess of 30 percent beginning November 6, 2020. The Board has also examined recent changes in the criteria applicable to skin disorders, effective August 13, 2018 (See 83 Fed. Reg. 32,592 (July 13, 2018)) but does not find that any of the changes pertinent to the instant claim impact the Board's decision in this case. Most notably, the revisions provide clearer definitions for topical and systemic therapy, noting that topical therapy is "treatment administered through the skin" and that systemic therapy is "treatment administered through any route (orally, injection, suppository, intranasally) other than the skin." This change does not warrant any change in the Board's decision regarding the Veteran’s scarring because the Veteran does not take any type of medication for it. Intraabdominal Injury Ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. 38 C.F.R. § 4.114. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under Diagnostic Code 7301, 10 percent rating is assigned for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body; or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is assigned for severe adhesions of peritoneum, definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note associated with Diagnostic Code 7301 provides that ratings for adhesions will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, and presence of pain. The Veteran received a VA Intestinal Surgery examination in August 2012 and stated that he had “trouble eating.” He also stated that “some foods don’t feel good in my stomach,” but denied taken any medication for this problem. The Veteran had regular bowel movements every other day and did not have blood in his stools. He also did not have hemorrhoids or other gastrointestinal problems. The Veteran submitted correspondence in August 2012 and indicated that he continued to suffer due to the pain in the scar areas of his surgeries in the stomach area. At the May 2018 Board hearing, the Veteran testified that he had adhesions at the intraabdominal injury. There was a deep scar where there were adhesions pulling, and the scar was painful. Pursuant to the August 2018 Board remand, the Veteran received a VA Scars examination in November 2019 and the examiner noted two scars in the abdominal area measuring 1cm by 0.3cm and 2cm by 0.4cm. The Veteran subjectively complained of pain, but the examiner was unable to find any objective evidence of tenderness or functional impairment. The examiner further found that he was unable to determine the probable path of shell fragments and probable depth of penetration of any shell fragments because the wounds were almost 50 years old and well-healed. There was no objective evidence of residual disability associated with the shell fragment wounds and they were all non-tender on palpation. An increase under Diagnostic Code 7301 is not warranted, as the examination reports do not show that the Veteran’s symptoms are moderately severe. There is no evidence of delayed motility, partial obstruction or other criteria that would indicate a higher rating under Diagnostic Code 7301 is appropriate. Additionally, the Board has also considered whether an additional or higher rating is warranted under another Diagnostic Code. In that regard, the Board notes that under 38 C.F.R. § 4.114, “[r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.” Rather, a single evaluation should be assigned under the Diagnostic Code which best reflects the predominant disability picture, and elevation to the next higher evaluation may be allowed where warranted by the severity of the overall disability. Here, the predominant disability picture is covered by the currently-assigned Diagnostic Code, as the Veteran’s symptoms are primarily those addressed in Diagnostic Code 7301. Muscle Injuries Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2017). A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55 (a). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions, which include 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318) and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323). 38 C.F.R. § 4.55(b). For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated, and the ratings combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.55(f). 38 C.F.R. § 4.56 provides guidance for the evaluation of muscle disabilities as slight, moderate, moderately severe, or severe. As relevant, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). The type of injury associated with a “moderate” muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). The type of injury associated with a “moderately severe” muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3). The only injury to a muscle group the Veteran is currently service connected for is the damage to Muscle Group XIX, which pertains to the abdominal wall and lower thorax, rated as 30 percent disabling since February 1970. The rating for this disability is not a matter for current appellate consideration. The Veteran received a VA examination on August 17, 2012, and the examiner noted penetrating muscle injuries to Muscle Groups XI and XIV. He reported increased weakness to the thigh muscles during physical activities. There was some loss of deep fascia and some impairment of muscle tonus, along with consistent weakness and a lowered threshold of fatigue in both muscle groups bilaterally. Muscle strength testing was less than normal (4/5) for Muscle Group XIV and there was muscle atrophy bilaterally. X-ray evidence revealed retained metallic fragments, such as shell fragments or shrapnel. The Veteran regularly wore a right knee brace for support, and the examiner noted he had an antalgic gait along with difficulty getting out of his chair and off of the examination table. At the May 2018 Board hearing, the Veteran’s wife testified that that Veteran “has big chucks of muscle that are gone out of his leg where they had to leave gaping wounds.” The Veteran was able to show his injuries to his leg which revealed “muscle tissue lost and indentations into the skin.” There were adhesions underneath the intraabdominal injury, and the Veteran testified that they gave him a “little itchy pinched feeling.” Furthermore, there were sometimes small, black dots where the embedded shrapnel was “coming up to the surface.” Pursuant to the August 2018 Board remand, the Veteran received a VA Muscle Injuries examination on November 6, 2019, where the examiner noted penetrating muscle injuries to Muscle Groups III, VII, VIII, XII, XIV, XV, and XIX. There was some loss of deep fascia and some impairment of muscle tonus, but muscle strength testing was normal for all groups. The Veteran did not use any assistive devices but complained of pain in the injured areas while perform his daily activities. He also complained of weakness in the thighs. X-ray evidence revealed retained metallic fragments, such as shell fragments or shrapnel. The examiner was unable to determine the probable path of shell fragments and probable depth of penetration of any shell fragments because the wounds were almost 50 years old and well-healed. There were subjective complaints of pain in the affected areas, even though the examiner was unable to find any objective evidence of tenderness or functional impairment. At the outset, the Board notes that the it has jurisdiction over issues where scarring is on appeal and finds that separate 10 percent evaluations are warranted for damage to Muscle Group XIV of the left and right thing. The August 2012 VA examination showed decreased strength in the thighs, and both examinations showed evidence of pain caused by retained metallic bodies. Furthermore, there is evidence of deep fascia loss and impairment of muscle tonus bilaterally for the thighs. Therefore, giving the Veteran the benefit of the doubt, the Board finds that separate 10 percent evaluations are warranted for moderate impairment of Muscle Group XIV of the left and right thigh. The effective date for the assignment of these separate evaluations is August 17, 2012, the date of the VA examination that revealed such injury. REASONS FOR REMAND 1. Entitlement to service connection for a skin rash of the right thigh, right hip, and right chest, to include as a result of exposure to herbicide agents Pursuant to the August 2018 Board remand, the Veteran received a VA examination in November 2019 and the examiner found that the Veteran had a diagnosis of dermatitis or eczema. The Veteran complained of rashes over his right thigh, right hip, and right chest that started around 1970. Upon examination, the examiner did not provide a response when asked to give a specific diagnosis, description, and location for each skin condition. Based on these results, she concluded that she was unable to find any skin rash of the right thigh, right hip, and chest area, and also unable to find any current diagnosis of skin rash. The examiner’s conclusion is internally inconsistent, and therefore inadequate. She initially notes a diagnosis of dermatitis or eczema but does not provide any follow-up description of the condition. Furthermore, she did not address the credible lay statements provided by the Veteran that he had discolored areas of his skin on his right thigh, upper chest, and upper arm; when asked if the Veteran previously had a skin condition that was now completely resolved and no longer required treatment of any type, the examiner did not provide a response. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). 2. Entitlement to an initial rating in excess of 10 percent for arthritis of the back prior to October 2, 2020, and in excess of 20 percent thereafter 3. Entitlement to an initial rating in excess of 10 percent for right hip limitation of extension 4. Entitlement to an initial compensable rating for right hip limitation of flexion 5. Entitlement to a compensable rating for right little finger limitation of motion The Veteran was previously examined for his back and hip disabilities in March 2013 and July 2016, and was previously examined for his right little finger disability in August 2018. The Board has reviewed those examination reports and notes that they are not adequate, as it does not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at those times. Consequently, the Board must remand the claims in order for another VA examination to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing). Furthermore, in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” The Court also stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. The matters are REMANDED for the following action: 1. Provide an examination and obtain a medical opinion from an examiner other than the November 2019 examiner regarding the nature and etiology of any current or previously diagnosed skin rash of the right thigh, right hip, and right chest. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously diagnosed skin rash of the right thigh, right hip, and right chest; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously diagnosed skin rash of the right thigh, right hip, and right chest was incurred in the Veteran’s service, including but not limited to exposure to herbicide agents. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 2. Schedule the Veteran for a VA examination so as to determine the current severity of his back, hip, and right little finger disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The back, hips and right little finger must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the range of motion results for the back and hips from the March 2013 and July 2016 VA examinations and the range of motion results for the right little finger from the August 2018 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner’s best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.