Citation Nr: 21012162
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 12-03 478
DATE: March 3, 2021

ORDER

1. Entitlement to increases in the staged (10 percent prior to November 10, 2020, and 50 percent from that date) ratings for headaches is denied.

2. Entitlement to increases in the staged (20 percent prior to September 8, 2017, and 40 percent from that date) ratings for lumbar spine degenerative disc disease (DDD), is denied.

3. The appeal challenging propriety of a reduction in the rating for the Veteran’s cervical spine disability from 30 to 20 percent effective April 13, 2010, is granted; restoration of a 30 percent rating from the effective date of the reduction is granted.

4. Entitlement to a rating in excess of 30 percent for a cervical spine disability is denied.  

5. An increased (to 20 percent) rating is granted for the Veteran’s right upper extremity sensory dysfunction throughout prior to September 8, 2017, subject to regulations governing payment of monetary awards; entitlement to a rating in excess of 20 percent for right upper extremity sensory dysfunction is denied.  

6. An increased (to 20 percent) rating is granted for the Veteran’s left upper extremity radiculopathy throughout prior to September 8, 2017, subject to regulations governing payment of monetary awards; entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied.  

7. Entitlement to a rating in excess of 10 percent for left lower extremity sensory loss is denied.

8. Entitlement to a rating in excess of 10 percent for left posterior neck scar prior to September 11, 2020, and to a rating in excess of 10 percent for left posterior neck and lower back (donor site) scars from September 11, 2020, is denied.

REMANDED

9. Entitlement to a rating in excess of 10 perfect for peptic ulcer disease is remanded.

10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 8, 2017 is remanded.

FINDINGS OF FACT

1. Prior to November 10, 2020, the Veteran’s headache disability picture was one most consistent with a level approximating characteristic prostrating attacks occurring on average once in 2 months over the last several months; characteristic prostrating attacks occurring on average once a month over the last several months (or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability) were not shown.

2. From November 10, 2020, the 50 percent rating assigned for the Veteran’s headache disability is the maximum schedular rating for such disability; factors warranting referral for extra-schedular consideration are not alleged or shown by the record.

3.  Prior to September 8, 2017, the Veteran’s low back disability was not shown to be manifested by forward flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes of disc disease; additional (not already acknowledged and separately rated) neurological manifestations were not shown or alleged.

4. From September 8, 2017, the Veteran’s low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of disc disease; additional (not already acknowledged and separately rated) neurological manifestations are not shown or alleged.

5. The reduction of the rating for the Veteran’s cervical spine disability was based on a single examination; it did not result in a reduction in compensation; sustained material improvement that would be maintained under the ordinary conditions of life was not shown.  

6. Throughout, the Veteran’s cervical spine disability is shown to have been manifested by, at worst, forward flexion of the cervical spine limited to 15 degrees or less; unfavorable ankylosis of the entire cervical spine has not been shown.

7. Throughout, the Veteran’s right (major) upper extremity sensory dysfunction has been manifested by impairment consistent with mild, but no greater, incomplete paralysis of upper radicular group. 

8. Throughout, the Veteran’s left (minor) upper extremity radiculopathy has been manifested by impairment consistent with mild, but no greater, incomplete paralysis of upper radicular group.   

9. At no time under consideration is the Veteran’s left lower extremity sensory dysfunction shown to have been manifested by more than mild incomplete sciatic nerve paralysis.

10. Throughout, the Veteran’s left posterior neck scar is shown to have been tender, but not unstable; visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) is not shown; and, two or more characteristics of disfigurement are not shown.  

11. Since September 11, 2020, the Veteran’s lower back (donor site) scar is not shown to be unstable.   

CONCLUSIONS OF LAW

1. Ratings for the Veteran’s headache disability in excess of 10 percent prior to November 10, 2020, and in excess of 50 percent from that date are not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8100.

2. Ratings for the Veteran’s low back disability in excess of 20 percent prior to September 8, 2017, and in excess of 40 percent from that date are not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5235-5243.  

3. The reduction of the rating for a cervical spine disability from 30 percent to 20 was not in compliance with governing regulations, and was not proper; restoration of a 30 percent rating from the date of reduction is warranted.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Codes 5235-5243. 

4. A rating in excess of 30 percent for cervical spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5235-5243.

5.  The Veteran’s right upper extremity sensory dysfunction warrants a 20 percent, but no higher, rating (under Code 8510) throughout.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21 4.124a, Codes 8510, 8515.  

6. The Veteran’s left upper extremity radiculopathy warrants a 20 percent, but no higher, rating (under Code 8510) throughout.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21 4.124a, Codes 8510, 8515. 

7. A rating in excess of 10 percent for left lower extremity sensory dysfunction is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Code 8520.

8. A rating in excess of 10 percent for left posterior neck scar prior to September 11, 2020, and in excess of 10 percent for left posterior neck and lower back (donor site) scar from September 11, 2020, is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.118, Codes 7800-7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from May 1976 to August 1996.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision.  In October 2016, a Board hearing was held before the undersigned in Washington, D.C.; a transcript is in the Veteran’s record.  In July 2017, the Board denied ratings in excess of 10 percent for the neck scar and for fecal leakage, and remanded the claims for increase for additional development.  [The Board also remanded the issues seeking to reopen claims of service connection for hearing loss and a groin scar, and service connection for bilateral hand tremors for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999).  Following the issuance of a June 2018 SOC, the Veteran did not file a timely substantive appeal in those matters.  Consequently, those matters are not before the Board.]  An interim (September 2018) rating decision, in pertinent part, increased the ratings for the lumbar spine DDD, cervical spine disability, left and right upper extremity radiculopathy, granted a TDIU rating effective September 8, 2017, and granted special monthly compensation (SMC) at the housebound rate, also effective September 8, 2017.  [The September 2018 rating decision also granted service connection for right lower extremity sensory dysfunction and assigned a 10 percent rating effective September 8, 2017.  The Veteran did not appeal that determination, and that decision is now final; the matter of the rating for right lower extremity sensory dysfunction is not before the Board.]        

The Veteran appealed the Board’s July 2017 decision to the U.S. Court of Appeals for Veterans Claims (CAVC).  A September 2018 CAVC Memorandum Decision vacated and remanded to the Board for additional action the portion of the July 2017 Board decision denying a rating in excess of 10 percent for a posterior neck scar.  [The CAVC affirmed the denial of a rating in excess of 10 percent for fecal leakage; accordingly, that matter is no longer before the Board.]  

In August 2019, the Board remanded the matters for additional development (for the Veteran to provide authorizations for VA to obtain identified private treatment records and for an adequate scar examination that complies with the Memorandum Decision.  In November 2019 correspondence, VA directed the Veteran to complete an enclosed 21-4142 for several private providers; more than 15 months have passed, and the Veteran has not provided a response.  The duty to assist a claimant is not a one-way street.  See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991).  Scar examinations were conducted in September and November 2020.  Accordingly, the Board finds that there has been substantial compliance with the Board’s August 2019 remand instructions (i.e., to the extent possible without the Veteran’s cooperation).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998).  

A November 2020 rating decision, in part, increased the rating for the headache disability from 10 to 50 percent, effective November 10, 2020, and continued a 10 percent rating for the left posterior neck scar, recharacterized the disability to include a lower back (donor site) scar, effective September 11, 2020.  

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).  “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.  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.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period.  38 C.F.R. § 3.400(o)(2).  Consequently, the evaluation period for consideration here is from March 2009 (a year prior to the March 18, 2010 date of claim for increase).

1. Entitlement to increases in the 10 percent prior to November 10, 2020 and 50 percent from that date rating for a headache disability is denied.

Migraine headaches are rated under Code 8100, which provides for a 10 percent rating when there are characteristic prostrating attacks occurring on an average once in 2 months over the last several months.  A 30 percent rating is warranted when there are characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent (maximum schedular) rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a.  

The rating criteria do not define “prostrating.”  According to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.”  In Johnson v. Wilkie, 30 Vet. App. 245 (2018), the CAVC indicated that “characteristic prostrating” headaches (required for a 30 percent rating) means that the headaches “typically produce powerlessness or a lack of vitality.”  The CAVC indicated that “completely prostrating” headaches (required for a 50 percent rating) “must render the veteran entirely powerless” [emphasis in original].

A November 2009 treatment record notes the Veteran’s report of a headache “off and on” during treatment for allergic rhinitis.  

On April 2010 VA (fee basis) examination, the Veteran reported headaches that “occur constantly” and manifest in chronic muscle spasm, tenderness, pain, and weakness.  He reported that headaches occur on average 10 times per day and last for 60 minutes.  When they occur “he has to stay in bed and is unable to do anything.”  He reported that he is unable to get out of bed and perform hygiene rituals until they subside, and that the headache disability “has caused him to be out of [a] job.”  On examination, cranial nerves were normal, coordination was within normal limits; speech was normal; there was no residual vision problem.

A June 2011 VA treatment record notes the Veteran’s report that he has “headaches which occur often.”  He reported that an ergonomic chair “helps.” 

A June 2015 VA treatment record notes complaints of worsening headaches for the prior three weeks, with dizziness.  He reported that the headaches feel different than a migraine headache as they manifest in his shoulders and neck.  The headache was described as moderate to severe (but not severe); he denied vomiting.  

A January 2016 VA treatment record notes that the Veteran denied experiencing a severe headache in the prior 48 hours.     

At the October 2016 Board hearing, the Veteran testified that he has constant daily headaches that rate “10 or over” on a scale of 1-10.  He stated the headaches are prostrating, and explained that at work he will “be sitting at [his] desk and it just – for hours, most of the day just”… “I can’t lay down at my desk, but I can – I can get up and either go outside in the gazebo in the park and just lay down on the bench” to try and get relief.  He also stated, “as soon as I get home, I go straight to bed.”  

On September 2017 VA (fee basis) headache examination, the Veteran reported constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity.  He also reported non-headache symptoms of sensitivity to light and sound, and lightheadedness.  He reported the headaches typically last 1-2 days in duration; he treats with Tylenol.  The examiner found that the Veteran does not have characteristic prostrating attacks of migraine/non-migraine headache pain.  She opined that the headache disability does not impact his ability to work.       

On November 2020 VA (fee basis) headache examination, the Veteran reported daily headaches that “comes and goes.”  He treats with Tylenol 500 mg as needed.  He reported symptoms including constant head pain which varies in location; he reported non-headache symptoms including nausea, vomiting, sensitivity to light, and dizziness.  He reported the headaches typically last less than one (1) day.  The examiner found that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain more frequently than once per month; she also found that he has very prostrating and prolonged attacks productive of severe economic inadaptability.  She opined that during flare-ups, the Veteran “may need rest or lying down…When it is severe, he needs lying down, which impact[s] his work during flare-ups.”    

Contemporaneous treatment records show varying reports of headaches throughout.  For example, the Veteran reported a headache during treatment in November 2009 (described as off and on), May 2010, November 2010, January 2012, February 2012, April 2012 (described as frequent, with duration varying between “sometimes brief, sometimes all day”), June 2015, January 2017, February 2017 (described as constant), March 2017 (described as constant), and April 2017.  The Veteran denied a headache during treatment in April 2009, June 2009, September 2010, February 2011, February 2012, March 2013, October 2013, June 2015, January 2016 (two visits), February 2017, May 2018, and July 2018. 

Prior to November 10, 2020

Prior to November 10, 2020, the Veteran’s headache disability has been assigned a 10 percent rating.  On longitudinal review of the record, the Board finds that prior to November 10, 2020, the Veteran’s headache disability is not shown to have been manifested by characteristic prostrating attacks occurring once a month on average, so as to warrant the next higher (30 percent) rating under Code 8100.  On September 2017 VA examination, the examiner opined, after review of the medical record and interview/examination of the Veteran, that the Veteran’s headaches do not manifest in prostrating attacks.  As outlined above, contemporaneous treatment records note varying reports, and denials, of headaches during this period.  Although at times they contain reports of constant headaches, they do not contain evidence or indication that such were prostrating.

The Board notes the Veteran’s report on April 2010 VA examination of headaches that occur on average 10 times per day, last for 60 minutes in duration, render him unable to get out of bed, and have resulted in his inability to work, and also his October 2016 testimony reporting daily headaches rated 10/10 (or higher) that are prostrating.  The Board finds such reports cannot be accepted as credible at face value, as they are inconsistent with his denials of headaches on at least 13 clinical appointments during this period, and also inconsistent with his other reports during treatment of headaches that vary in duration, described as “off and on” and “brief.”  They are inconsistent with his report of working 40 hours a week as a contractor during significant portions of the period, including specifically from November 2007 to November 2009, September 2012 to December 2013, October 2013 to November 2013, and March 2015 to July 2016.  See October 2016 VA Form 21-8940.  [As noted above, the Veteran did not respond to November 2019 VA correspondence requesting authorizations for VA to obtain outstanding private treatment records, and it is assumed that such records either do not exist, or do not support his claim.]  The Board finds the Veteran’s own (and clinicians’) reports recorded in contemporaneous treatment records and in examination reports, gathered in a clinical context, to be more probative than his lay statements on April 2010 examination and at the October 2016 hearing.   

Accordingly, the Board finds that prior to November 10, 2020, the Veteran’s headache disability picture was one most resembling a level approximating (and not exceeding) characteristic prostrating attacks occurring on an average once in 2 months over the last several months; characteristic prostrating attacks occurring on an average once a month over the last several months are not shown.  

From November 10, 2020

From November 10, 2020, the Veteran’s headache disability has been assigned a 50 percent rating.  The Board has considered whether a rating in excess of 50 percent is warranted at any time since but finds that it is not.  The 50 percent rating assigned throughout is the maximum schedular rating available for headaches.  The record does not show or suggest that the rating criteria are inadequate for rating the Veteran’s headache disability, so as to warrant referral for consideration of an extraschedular rating.  The effects of the disability (detailed above) are fully contemplated by the criteria for the 50 percent rating.  Therefore, those criteria are not inadequate; there is nothing exceptional or unusual about the Veteran’s headache disability; and referral for consideration of an extra-schedular rating is not necessary.  See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020); see also Thun v. Peake, 22 Vet. App. 111 (2008).  Accordingly, a rating in excess of 50 percent from November 10, 2020, is not warranted.

Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply; the appeal in this matter must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

2. Entitlement to increases in the (20 percent prior to September 8, 2017 and 40 percent from that date) ratings for a lumbar spine disability is denied.

The criteria for rating spine disabilities are found in Codes 5235 – 5243.  A spine disability which includes disc pathology may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or based on Incapacitating Episodes of Disc Disease IVDS), whichever is more favorable.  Under the General Formula, the following ratings apply to disabilities of the thoracolumbar spine: A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  And a 100 percent rating is assigned ed for unfavorable ankylosis of the entire spine.  Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code.  See Note (1) following the General Formula.  38 C.F.R. § 4.71A.  

Under the Formula for Rating IVDS Based on Incapacitating Episodes, the following ratings apply: A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year.  An “incapacitating episode” is defined as “a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.”  38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, and Note (1) following.

[Effective February 7, 2021, the regulations regarding evaluating disabilities of the spine were updated.  However, the changes to the regulations, including changes in definitions of IVDS and degenerative arthritis, do not impact the criteria for rating the lumbar and cervical spine disabilities in the instant case.]  

A September 2009 treatment record notes the Veteran was in a motor vehicle accident nearly two weeks prior.  Thoracolumbar spine “motion was normal” but “did not demonstrate full range of motion.”  The assessment was sprain; ROM study measurements were not provided.     

A December 2009 private MRI found spondylosis with DDD at L5-S1.  There was no focal protrusion, stenosis, or acute bony abnormality.  

On April 2010 VA (fee basis) examination, the Veteran reported lower back stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, and weakness of the spine and legs; he denied bladder problems and erectile dysfunction due to his spine condition.  [He reported related bowel problems; a 10 percent rating is assigned for such.  As noted above, that matter is no longer before the Board.]  He reported constant pain and ability to walk only 21 feet.  He reported that during flare-ups pain is exacerbated by physical activity and stress, and that he cannot bend forward or sideways.  He also reported having incapacitating episodes in February 2010 with physician-prescribed bed rest totaling 12 days by Dr. B.  On examination his gait was normal, and walking was steady; there was no difficulty with weight bearing or balancing.  Initial ROM testing showed forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, each, and right and left lateral rotation to 30 degrees, each.  There was no additional limitation after repetitive use testing.  Lower extremity motor function was within normal limits; reflexes were normal.  Sensory function was abnormal with partial sensory loss of the left leg and foot (on pin prick test).  The peripheral nerve most likely involved was the sciatic nerve.  There were signs of IVDS, but such did not cause bowel, bladder, or erectile dysfunction.  X-rays showed mild degenerative disc space narrowing at L5-S1.  The diagnosis was lumbar spine DDD, IVDS, and peripheral nerve involvement of “the sciatic nerve which affects the left side of the body.  There are no complications.”  The examiner opined that the Veteran’s numerous disabilities result in pain with walking and bending. 

A January 7, 2011 VA physical therapy (PT) record notes the Veteran’s complaint of chronic low back pain.  He reported aggravating factors of lifting, bending, driving, sitting and standing for long period of time, sitting in a “regular chair” (non-ergonomic), weather, carrying, rotation, and “being under pressure.”  He treats with hot towel, ice, TENS unit, back support, chiropractic services, “special shoes,” PT, and pool therapy.  On examination, his posture was within functional limits.  Active ROM testing was listed as “flex, ext, B SB 5 deg only.”  The exact meaning of the notation is unclear, but it could be interpreted to mean that flexion, extension, and bilateral side bending were to 5 degrees, each.  Bilateral lower extremity strength was 3/5; sensation was intact.  Gait was slow but within functional limits.  He was able to lift 10 pounds, pull and push at least 10 pounds, squat (with moderate difficulty), and reach (within normal limits).       

A March 2011 treatment record notes the Veteran’s report of continued back pain.  He reported trying to stay as active as possible and explained that a stationary hand bike helps his neck pain.  An April 2011 treatment record notes no weakness, no sensory deficits, and normal gait.  

An August 2012 lumbar spine CT scan showed right eccentric disc protrusion at L4-L5 causing moderate right neural foraminal narrowing, and L5-S1 DDD and endplate sclerosis with mild to moderate foraminal narrowing; there was no severe osseous central canal compromise.     

A December 2012 VA treatment record notes the Veteran’s report of mechanical low back pain.  On examination there was palpable tenderness over the lumbar paraspinal muscles.  Gait was normal; there was no weakness.  

At the October 2016 Board hearing, the Veteran testified that he has diagnoses of DDD and herniated discs.  He reported symptoms of spasms, and testified that the disability has worsened since the prior examination.  

A July 2017 treatment record notes “slow travel to full trunk flexion,” right rotation to 10 degrees and left rotation to 15 degrees.  

On September 8, 2017 VA (fee basis) back examination, the diagnoses were DDD and sensory dysfunction of both lower extremities.  Veteran reported constant back pain that is exacerbated with prolonged sitting and standing, and lifting over 10 pounds, and improved by jacuzzi and tai chi.  He reported numbness and tingling in both lower extremities, treated with Tylenol and topical thera-gesic.  The examiner noted a history of treatment that included gabapentin, TENS unit, and acupuncture.  Initial ROM testing showed forward flexion to 25 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, each, and right and left lateral rotation to 5 degrees, each.  Pain was noted to cause functional loss in all planes, and there was evidence of pain with weight-bearing.  The examiner also noted “suboptimal effort” during testing.  Following repetitive use testing, there was no additional loss of function or ROM.  The examiner was unable to estimate ROM after repeated use over time or during flare-ups without speculation.  There was guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour.  There was no muscle atrophy; the spine was not ankylosed.  Strength, reflex, and sensory tests were normal.  Straight leg raising tests were positive bilaterally.  The Veteran reported bilateral mild intermittent pain, paresthesias/dysesthesias, and numbness.  The examiner diagnosed bilateral mild radiculopathy, but no other neurologic abnormalities.  IVDS was diagnosed, but there was no physician-prescribed bed rest in the prior 12 months.  The examiner, a nurse practitioner, noted that the Veteran worked at a desk job (as a contractor) and had lost 0-1 week of work in the last 12 months.  She acknowledged that he needs to take frequent breaks to get up and walk around.      

A June 2018 lumbar spine MRI showed mild degenerative changes, most pronounced at L5-S1.  There was no significant central canal stenosis.  Foraminal narrowing was most pronounced at L5-S1.

A later June 2018 treatment record notes that the Veteran showed an easy transition from seating to standing.  Lumbar spine ROM was normal flexion, extension, rotation, and lateral bending.  Gait and balance were normal.  Strength tests were normal.  Lower extremity testing found no weakness or sensory abnormalities.     

On November 2020 VA (fee basis) back examination, the diagnoses were lumbar DDD and left lower extremity radiculopathy.  The Veteran reported back pain with radiation to both legs, described as a feeling of pins and needles in both feet.  He endorsed flare-ups that manifest in “more pain” and limit lifting, balance, prolonged sitting, and sleeping on his back.  Initial ROM testing showed forward flexion to 35 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, each, and right and left lateral rotation to 20 degrees, each.  Pain was noted to cause functional loss in all planes, and there was evidence of pain with weight-bearing.  Lower back diffused pain was noted on palpation.  Following repetitive use testing, there was no additional loss of function or ROM.  Although the examination was not conducted after repeated use over time or during a flare-up, the examiner opined that pain, fatigue, and lack of endurance would limit functional ability during such periods, and estimated that during such periods ROM would be forward flexion to 35 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, each, and right and left lateral rotation to 20 degrees, each.  There was no guarding of the spine or muscle spasm.  There was no muscle atrophy; the spine was not ankylosed.  Strength, reflex, and sensory tests were normal.  Straight leg raising tests were negative bilaterally.  There was left lower extremity moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness; there were no right lower extremity signs or symptoms due to radiculopathy.  IVDS was not diagnosed.  The examiner, an occupational medicine physician, opined that the low back disability limits prolonged sitting, standing, walking, carrying, and lifting.  [She noted the Veteran’s reports of right lower extremity radicular symptoms, but (explaining that the examination was normal for strength, reflex, sensation, and straight leg test) that a diagnosis of radiculopathy was not supported.]   

Prior to September 8, 2017

The Board finds that the record does not show that prior to September 8, 2017, the Veteran’s low back disability was manifested by symptoms/impairment of (or approximating) a severity warranting the next higher, 40 percent, rating under the General Formula.  On VA examination during this period, forward flexion was to 60 degrees (April 2010).  And a July 2017 VA treatment record notes “full trunk flexion” (albeit with “slow travel”).  

The Board notes the January 2011 physical therapy notation that could be interpreted to mean that flexion, extension, and bilateral side bending were to 5 degrees, each.  The Board finds that the findings on this clinical visit (to the extent they may reflect lumbar spine forward flexion limited to 5 degrees) are so inconsistent with other examination reports and clinical treatment records that they cannot be accepted accurate at face value.  Significantly, no other examination or treatment record found limitation of forward flexion even limited to the 30 degrees required for a 40 percent rating, much less to the 5 degrees noted in that treatment record.  There is no competent evidence of additional (to fecal leakage and bilateral lower extremity sensory dysfunction) neurological manifestations.  

As the April 2010 examiner noted signs of IVDS, the Board has also considered whether a higher schedular rating would be warranted if the low back disability was rated under the Formula for Rating IVDS based on incapacitating episodes.  Under that Formula, the next higher (40 percent) rating for IVDS requires at least 4 (but less than 6) weeks of total duration of incapacitating episodes in the last 12 months.  Although the April 2010 examination report notes the Veteran’s report of incapacitating episodes in February 2010 for 12 days with bed rest recommended by Dr. B, a review of the evidence did not find physician-prescribed bed rest shown.  [As noted above, the Veteran did not respond to November 2019 correspondence seeking authorization for VA to obtain any outstanding private records, and it is assumed that any such records that may exist do not support his claim.]  Furthermore, assuming arguendo that there were 12 days of physician prescribed bed rest in February 2010, such would not warrant the next higher (40 percent) rating, as that requires a total duration of at least four weeks of physician-prescribed bedrest in the prior 12 months.  Accordingly, a higher rating based on incapacitating episodes is not warranted.  Therefore, a rating in excess of 20 percent was not warranted prior to September 8, 2017.

From September 8, 2017

From September 8, 2017, the Veteran’s low back disability has been rated 40 percent.  The next higher (50 percent) rating under the General Formula requires unfavorable ankylosis of the entire thoracolumbar spine.  All evaluations and examinations during this period found that the Veteran retains motion of the thoracolumbar spine (even with consideration of additional limitation due to pain, on repeated use, and during flare-ups (as detailed above)).  No examiner found the spine to be ankylosed, much less ankylosed in an unfavorable position.  See September 2017 and November 2020 VA (fee basis) back examination reports.  No other (beyond fecal leakage and bilateral lower extremity sensory dysfunction) neurologic manifestations are shown (and further separate ratings for such are not warranted).  

The Board has also considered whether a higher schedular rating would be warranted if the low back disability was rated based on incapacitating episodes of IVDS.  However, a review of the evidence did not find any physician-prescribed bed rest during this period, and such was not alleged.  Accordingly, a rating in excess of 40 percent is not warranted from September 8, 2017.

The preponderance of the evidence is against this claim.  Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied.  38 U.S.C. § 5107(b); Gilbert, supra.

[The matter of the rating for left lower extremity sensory dysfunction is addressed below.]

3. Restoration of a 30 percent rating for a cervical spine disability is granted.

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of notice to the veteran expires.  38 C.F.R. § 3.105(e).

Under 38 C.F.R. § 3.344(a)(b)(c), ratings for disabilities that have continued at the same level for long periods (5 years or more) are subject to procedural safeguards that include that a rating for a disease subject to episodic improvement will not be reduced based on a single examination, except in those instances where all the evidence clearly warrants the conclusion that sustained improvement has been demonstrated.  When a reduction is made without compliance with applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

General regulatory requirements for disability ratings must be met in determining whether improvement is shown.  See Brown v. Brown, 5 Vet. App. 413 (1993) (wherein CAVC provided guidance for adjudications involving rating reductions).  Noteworthy in that guidance is the admonition that when any change in evaluation is made the rating agency should assure itself that there has been an actual change in the condition and that to warrant a reduction it must be determined “that an actual improvement in disability occurred” in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced).  See also 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Under the General Formula, the following ratings apply to disabilities of the cervical spine: A 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, with combined range of motion of the cervical spine not greater than 170; or, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent rating is warranted when the forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

IVDS may be rated under either the General Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes (as outlined above).  

On February 2007 VA (fee basis) neck examination (prior to the period for consideration), ROM testing showed forward flexion to 15 degrees (with pain at 10 degrees), extension to 10 degrees (with pain at 5 degrees), right and left lateral flexion to 20 degrees (with pain at 20 degrees), each, and right and left rotation to 15 degrees (with pain at 15 degrees), each.  Repetitive use testing additionally limited joint function by 5 degrees due to pain, weakness, and lack of endurance.  The examiner opined that, because of the neck disability, the Veteran is unable to sit for more than 30 minutes without neck pain, headache, and numbness in the left fingers; he also has pain with turning his neck for driving or other daily activities.  

A September 2009 treatment record notes the Veteran’s complaint of neck and back pain following a motor vehicle accident 12 days prior.  On examination, there was tenderness on palpation and pain on motion.  Cervical spine motion, flexion, extension, and rotation were “normal.”  [ROM measurements were not provided.]     

A December 2009 cervical spine MRI found multilevel spondylosis and disc disease.  No acute abnormality was shown.

On April 2010 VA (fee basis) examination, the Veteran reported neck pain since a C1-C2 fusion surgery.  He reported that the pain in constant, severe, and that it travels to the left arm; the pain is exacerbated by physical activity and laying/sitting too long; it is relieved by gabapentin.  He endorsed flare-ups manifested by pain, tingling of the left arm, and numbness in the face.  He also reported loss of motor skills, sensory impairment, and inability to grasp.  [As noted above, the examination report notes that he reported 12 days of incapacitating episodes with bed rest recommended by Dr. B.]  On examination of the cervical spine, there was no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone, and atrophy of the limbs; there was no ankylosis of the cervical spine.  ROM testing showed flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, each, and right and left rotation to 40 degrees, each; pain was noted at the end of each movement.  Repetitive use testing did not result in additional degree of limitation.  The examiner opined that the Veteran’s disabilities cause pain on walking and bending; specific impacts due to the neck disability were not offered/noted. 

A January 7, 2011 VA PT record notes the Veteran’s report of chronic neck pain, rated 8/10.  He reported aggravating factors of rotation, bending, looking at papers on a desk for long periods of time, small workspaces, and when people place their hands on the back of his upper back/neck.  He reported easing factors such as soft and hard collars, heat, hot tub, massage, TENS unit, pool therapy, laying supine on a hard floor, PT, medication, and chiropractic services.  The record states, “flex/ext 3 deg, B SB 3-5 deg, Rot B 3-5 deg,” which could be interpreted to mean that flexion and extension were to 3 degrees, bilateral side bending was 3-5 degrees, and bilateral rotation was 3-5 degrees.  

A March 2011 VA treatment record notes his report that a stationary hand bike helps his neck. 

A June 2015 cervical spine MRI found posterior fusion at C1-C2 with susceptibility artifact, multilevel DDD and facet arthritis with varying degrees of mild to moderate spinal canal stenosis (most pronounced at C4-C5, and neural foraminal narrowing most pronounced at C3-C4 on the left.  

At the October 2016 Board hearing, the Veteran testified that his neck is stiff and that he must turn his “whole body around” to function.  If he attempts to turn his head, he feels a “pulling sensation.”  He testified that when working he requires a chair with a swivel so he can turn his body, not his neck, at his workstation.  

A November 2016 VA treatment record notes the Veteran’s report of “excruciating” neck pain.  He reported being seen by an outside neurologist and pain clinic (but was not sure of their names).  He reported relief with swimming, and inability to tolerate gabapentin, as it is too sedating.

A January 2017 cervical spine MRI shows “Cerclage wires posteriorly at C1-C2 with extensive field distortion artifact, which does obscure evaluation in the adjacent structures at this level.  Within these confines, multilevel degenerative disease and facet arthrosis is noted most pronounced at C6-C7 with moderate to severe central stenosis and mild bilateral neural foraminal narrowing.”

A separate January 2017 treatment record notes the Veteran’s report of neck pain and persistent paresthesias of the bilateral upper extremities.  ROM was reported as “normal flexion and extension of neck and bilateral ear to shoulder.”  Strength was 5/5.  The assessment was cervicalgia.  

A February 2017 treatment record notes complaints of posterior neck pain that travels to the front of the head and down the arms.  The cervical spine “did not show full range of motion.”  Exact measurements were not recorded.  

On September 8, 2017 VA (fee basis) neck examination, the diagnoses were status post spinal fusion C1-C2 with degenerative changes of the cervical spine with history of trapezius pain, bilateral upper extremity sensory dysfunction, and IVDS.  The Veteran reported daily “excruciating” neck pain with difficulty turning his head and pain that impacts his ability to sleep; he also reported that he feels hardware in his neck.  He reported treatment with Tylenol and thera-gesic topical cream.  ROM testing showed flexion to 5 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, each, and right and left rotation to 5 degrees, each.  The Veteran reported decreased fluidity and pain; the examiner noted “suboptimal effort.”  Repetitive use testing did not result in additional loss of function or ROM.  The examiner was unable to estimate ROM during repeated use over time or during flare-ups.  The Veteran reported “severe” pain on palpation.  The cervical spine was not ankylosed.  IVDS was diagnosed but there were no physician-prescribed episodes of bed rest in the prior 12 months.  The examiner opined that the Veteran’s neck disability does not impact his ability to work.    

A January 2018 VA treatment record notes continued complaints of neck pain and his report that he is working on exercises, walking, and low impact exercise.  The assessment was neck pain with radiation to the left shoulder.

On November 2020 VA (fee basis) neck examination, the diagnoses were status post spinal fusion C1-C2 with degenerative changes of the cervical spine with history of trapezius pain, bilateral upper extremity sensory dysfunction, and IVDS.  The Veteran reported neck pain radiating from his neck to both shoulders and arms, difficulty turning his neck, and headaches.  He reported treatment with a TENS unit and Tylenol.  He endorsed flare-ups that manifest with dizziness.  ROM testing showed flexion to 5 degrees, extension to 35 degrees, right and left lateral flexion to 5 degrees, each, and right and left rotation to 20 degrees, each.  The examiner noted “Limited neck moving due to pain and neck fusion surgery.”  Pain was noted in all planes of motion.  Moderate to severe pain was noted on palpation of the cervical spine and paraspinal to trapezius.  Repetitive use testing did not result in additional loss of function or ROM.  Although the examination was not conducted after repeated use over time or during a flare-up, the examiner opined that pain, fatigue, and lack of endurance would limit functional ability during these periods, and estimated that during such periods ROM would be forward flexion to 5 degrees, extension to 25 degrees, right and left lateral flexion to 5 degrees, each, and right and left rotation to 20 degrees, each.  There was no guarding or muscle spasm.  The spine was not ankylosed.  IVDS was diagnosed but there were no physician-prescribed episodes of bed rest in the prior 12 months.  The examiner opined that the Veteran’s neck disability limits his ability to perform tasks requiring rotation, or flexion, of the neck, such as driving.  

At the outset, the Board finds that the rating reduction in this case did not involve a violation of the due process provisions of 38 C.F.R. § 3.105(e).  An August 2010 rating decision decreased the rating for the Veteran’s cervical spine disability from 30 to 20 percent, effective April 13, 2010.  However, because the rating decision also granted service connection for several other disabilities, his combined rating, and compensation, was increased (not reduced).  Since the 30 percent rating for the cervical spine disability was in effect for less than five years (December 2006 through April 2010), the provisions of 38 C.F.R. § 3.344 do not apply.  Accordingly, the analysis proceeds to whether the reduction was warranted by the factual record.  

Upon longitudinal review of the record, the  Board finds that the reduction in the rating for a cervical spine disability from 30 to 20 percent was improper because the April 2010 examination (on which the reduction was based) did not demonstrate improvement that reflects an improvement in ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342 (2000).  On February 2007 VA examination (prior to the period for consideration), ROM was forward flexion to 15 degrees (with pain at 10 degrees); the examiner opined that, because of the neck disability, the Veteran is unable to sit for more than 30 minutes without neck pain, headache, and numbness in the left fingers; it was also noted that he has pain with turning his neck for driving or other daily activities.  On April 2010 examination, forward flexion was noted to be to 20 degrees (including with pain); however, the examiner did not describe/opine on the impact of the Veteran’s neck disability on the ordinary conditions of life and work; the examination report is less full and complete than that on which the 30 percent rating was initially based (the February 2007 examination).  Significantly, VA examinations in February 2007, September 2017, and November 2020 found forward flexion to be to 10 degrees (with pain), 5 degrees, and 5 degrees, respectively (all supporting a 30 percent rating).  

Based on the totality of the evidence, including that forward flexion was to 20 degrees on April 2010 examination (only 5 degrees less loss than to the 15 degrees or less required for a 30 percent rating) and that the such examination did not demonstrate an improvement that actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work, the Board finds that the reduction in the rating for the cervical spine disability from 30 to 20 percent was improper, and that restoration of a 30 percent rating from the effective date of the reduction, April 13, 2010, is warranted.   

4.  A rating in excess of 30 percent for a cervical spine disability is denied.

Upon restoration of the rating for the cervical spine disability to percent, what remains for consideration is the matter of entitlement to a rating in excess of 30 percent throughout.  The next higher (40 percent) rating is warranted for unfavorable ankylosis of the entire cervical spine.

The medical evidence of record does not show that the Veteran’s cervical spine is ankylosed (or was ankylosed at any time under consideration).  VA examinations in April 2010, September 2017, and November 2020 did not find cervical spine ankylosis.  Treatment records throughout do not show ankylosis of the cervical spine, or that such disability manifests to a degree of limitation comparable to ankylosis of the cervical spine (even with consideration of additional limitation due to pain, on repeated use, and during flare-ups (as noted above)). 

As IVDS was diagnosed on the latter VA examination, the Board has considered whether a higher schedular rating would be warranted if the neck disability was rated under the Formula for Rating IVDS based on incapacitating episodes.  Under that Formula, the next higher (40 percent) rating for IVDS requires at least 4 (but less than 6) weeks of total duration of incapacitating episodes in the last 12 months.  Although the April 2010 examination report notes the Veteran’s report of incapacitating episodes for 12 days in February 2010, with bed rest recommended by Dr. B, a review of the evidence did not find ant physician-prescribed bed rest.  [As noted above, the Veteran did respond to November 2019 correspondence seeking authorization for VA to obtain any outstanding private records.]  Furthermore, assuming arguendo that there were 12 days of physician prescribed bed rest in February 2010, such would not warrant the next higher (40 percent) rating, as that requires at least four weeks of physician-prescribed bedrest in the prior 12 months.  Accordingly, a higher rating based on incapacitating episodes is not warranted, and a rating in excess of 30 percent for the cervical spine disability is not warranted. 

[Ratings for the Veteran’s associated bilateral upper extremity sensory dysfunction/radiculopathy are addressed below.]  

5. An increased (to 20 percent, but no higher) rating is granted for right upper extremity sensory dysfunction throughout prior to September 8, 2017; entitlement to a rating in excess of 20 percent for right upper extremity sensory dysfunction is denied.

6. An increased (to 20 percent, but no higher) rating is granted for left upper extremity radiculopathy throughout prior to September 8, 2017; entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied.

The Veteran’s right and left upper extremity radiculopathy are each assigned staged ratings of 10 percent prior to September 8, 2017 (under Code 8515), and 20 percent from that date (under Code 8510).

Under Code 8515 (for median nerve disability), mild incomplete paralysis is rated as 10 percent for both the major and minor extremities.  Moderate incomplete paralysis is rated 30 percent for the major extremity and 20 percent for the minor extremity.  Severe incomplete paralysis is rated 50 percent for the major extremity and 40 percent for the minor extremity.  Complete paralysis warrants higher ratings [there is no evidence in this case to suggest complete paralysis]. 38 C.F.R. § 4.124a.  

Under Code 8510 (for upper radicular group disability), mild incomplete paralysis is rated 20 percent for both the major and minor extremities.  Moderate incomplete paralysis is rated 40 percent for the major extremity and 30 percent for the minor extremity.  Severe incomplete paralysis is rated 50 percent for the major extremity and 40 percent for the minor extremity.  Complete paralysis warrants higher ratings [there is no evidence in this case to suggest complete paralysis]. 38 C.F.R. § 4.124a.  

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Board acknowledges that on recent examinations the Veteran has reported that he is ambidextrous.  However, on April 2010 examination, he reported that he uses his right hand to write and eat.  That examiner identified his right hand as his dominant hand, and the Board’s analysis will proceed accordingly (i.e. with consideration of the Veteran’s right hand as his dominant, or major, extremity).  

As the Veteran’s right and left upper extremity sensory dysfunction/radiculopathy is associated with the Veteran’s cervical spine disability, some of the relevant factual background is outlined above.  However, pertinent evidence is summarized here, for ease of review and analysis.

On April 2010 VA (fee basis) examination, the Veteran reported constant, severe, neck pain that travels to the left arm, and is exacerbated by physical activity and prolonger laying/sitting and relieved by gabapentin.  He endorsed having flare-ups of pain, tingling of the left arm, and numbness in the face.  He also reported loss of motor skills and sensory impairment, and inability to lift, hold, and grasp.  Examination found no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone and atrophy of the limbs.  Cranial nerves were normal; coordination was within normal limits.  Motor function was within normal limits.  Reflexes were normal bilaterally.  Sensory function (using pin prick testing) was abnormal with findings of partial sensory deficit in the bilateral forearms, thumbs, and index fingers; there was also sensory deficit of the left long, ring, and little fingers.  The examiner diagnosed cervical IVDS and opined that the “most likely [involved] peripheral nerve is the Radial Nerve and Ulnar Nerve.”  The physician later reiterated his opinion that “the most likely involved peripheral nerve is the radial and ulnar nerve which affects both sides of the body.  There are no complications.”  

A December 2012 treatment record notes the Veteran’s report of right arm pain.  Examination found no sensory disturbances or numbness.  

A May 2014 treatment record notes the Veteran’s report of back and neck pain after a fall.  Examination showed normal cranial nerves, coordination, sensation, and reflexes.  

A May 2015 treatment record notes normal strength of the upper extremities.  

At his October 2016 Board hearing, the Veteran testified that he experiences left hand and arm shaking “on many occasions.”  He also testified that he gets “shooting pains down my arms every now and then.”

A January 2017 treatment record notes the Veteran’s report of persistent paresthesias of both upper extremities.  Examination showed upper extremity sensation was intact (multiple dermatomes); Spurling’s compression test was negative.  

A February 2017 treatment record notes the Veteran’s report of neck pain that travels down his arms.  Examination showed normal sensation, strength, and reflexes of the upper extremities.  The assessment was cervical region spondylosis without myelopathy or radiculopathy.  

A March 2017 treatment record notes the Veteran’s report of central neck pain that radiates to both upper trapezius/shoulders.  Examination of both upper extremities found normal strength, intact sensation to light touch, and normal reflexes.  Localized pain was noted on Spurling’s compression test.  The diagnosis was cervicalgia.  

On September 8, 2017 VA (fee basis) neck examination, the diagnoses were left upper extremity radiculopathy and right upper extremity dysfunction.  The Veteran reported shooting pain from his neck into his hands, and numbness in his hands.  Strength, reflexes, and sensory tests were normal, with the exception of the right hand/fingers which found decreased (not absent) sensation.  The Veteran reported bilateral, mild intermittent pain and numbness.  The examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved, and opined that the severity was mild bilaterally.  She noted that the Veteran’s fine motor movements appeared normal when not being examined, such as when retrieving his shoes from the floor after the examination.     

On September 8, 2017 VA (fee basis) peripheral nerves examination (by the same examiner), the examiner reiterated the complaints and findings from the neck examination.  She opined that the Veteran has mild incomplete paralysis of the right (but not left) median nerve.  She checked the boxes to indicate that the radial nerve and upper radicular group were normal bilaterally.    

A January 2018 VA treatment record notes an assessment of neck pain with radiation to the left shoulder.

On November 10, 2020 VA (fee basis) neck examination, the diagnoses were status post spinal fusion C1-C2 with degenerative changes of the cervical spine with history of trapezius pain, bilateral upper extremity sensory dysfunction, and IVDS.  The Veteran reported neck pain radiating from his neck to both shoulders and arms.  Strength, reflex, and sensory tests were normal.  The Veteran reported moderate intermittent pain and mild numbness of both upper extremities.  The physician examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved, and that the severity was mild bilaterally.  The examiner explained that radiculopathy of the left upper extremity is asymptomatic on examination.  “However, the Veteran complains of radicular pain radiating to both upper extremities, therefore the service connected diagnosis, radiculopathy left upper extremity is maintained.”  

Prior to September 8, 2017, the Veteran’s right and left upper extremity sensory dysfunction/radiculopathy associated with his cervical spine disability have been assigned 10 percent ratings, each, under Code 8515.  From September 8, 2017, his right and left upper extremity dysfunction/radiculopathy are assigned a 20 percent rating, each, under Code 8510.

Initially, the Board notes that the evidence regarding the characterization of the nerve(s) involved throughout is somewhat conflicting.  On April 2010 examination, the median nerve was not implicated; the examiner explained that the “most likely involved peripheral nerve is the radial and ulnar nerve which affects both sides of the body.”  [The Board notes, however, that the rating during this period was assigned under Code 8515, for median nerve paralysis.]  On September 8, 2017 neck examination, the examiner opined that the C5/C6 nerve roots (upper radicular group) were involved bilaterally; she then opined on a peripheral nerve examination on the same date that the Veteran has mild incomplete paralysis of the right (but not left) median nerve, and that the radial nerve and upper radicular group were normal bilaterally.  On November 2020 neck examination, the examiner opined that that the C5/C6 nerve roots (upper radicular group) were involved. 

Upon longitudinal review of the evidence of record (including the conflicting characterization of the nerve(s) implicated), and affording the Veteran the benefit of the doubt, the Board finds that throughout, 20 percent ratings, each, are warranted for the Veteran’s right and left upper extremity sensory dysfunction/radiculopathy under Code 8510 (and not under Code 8515).  [The Board acknowledges that the disabilities were assigned 10 percent ratings, each, under Code 8515 (for median nerve involvement) prior to September 8, 2017, but finds that during that period, and throughout the entire period for consideration (based on symptoms shown and nerves implicated) the disabilities are more properly rated under Code 8510.  Importantly, the April 2010 examiner did not implicate the median nerve.  Although the right (but not left) median nerve was implicated on September 8, 2017 peripheral nerve examination, that same examiner implicated the C5/C6 nerve roots (upper radicular group) bilaterally on a neck examination on the same day.  And, most recently, the November 2020 examiner implicated the C5/C6 nerve roots (upper radicular group).]     

The Board finds that throughout, the right and left upper extremity nerve disabilities each most closely approximate mild (and not greater) incomplete paralysis of the upper radicular groups.  Notably, VA (fee basis) examiners diagnosed mild (and not greater) incomplete paralysis on September 2017 neck and peripheral nerves examinations, and on November 2020 neck examination; none diagnosed moderate or greater incomplete paralysis of either upper extremity.  [The November 2020 examiner explained that left upper extremity radiculopathy was asymptomatic on examination, but continued the diagnosis based on the Veteran’s subjective reports.]  Although the April 2010 physician examiner did not identify a level of severity, it is noteworthy that he opined that there are “no complications” from the bilateral radial and ulnar nerve disability, a finding that comports with no more than mild incomplete paralysis.  Treatment records throughout show that the disabilities are primarily manifested by reports of pain and sensory disturbance.  The Veteran testified in October 2016 that he experiences “shooting pains down my arms every now and then,” thus reporting that the symptomatology is not constant (or even very frequent) .  The Board also finds that the most probative evidence of record is against a finding that the disabilities are manifested by impairment of motor strength, trophic changes, loss of reflexes, muscle atrophy, and complete paralysis.  

Affording the Veteran the benefit of the doubt, the Board finds that the level of impairment is most analogous to bilateral, mild incomplete paralysis of the upper radicular group, throughout, and that a 20 percent (but no higher) rating, each, is warranted for right and left upper extremity sensory dysfunction/radiculopathy under Code 8510, throughout.    

[The Board acknowledges that any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  However, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments.  See 38 C.F.R. §§ 3.951, 3.957; Butts v. Brown, 5 Vet. App. 532, 538 (1993).  As this decision increases (and does not reduce) the ratings assigned, and the reason for the changes in the diagnostic codes is explained in detail, the regulatory and Caselaw guidance relating to change of diagnosis has not been violated.]

7. Entitlement to a rating in excess of 10 percent for left lower extremity sensory dysfunction is denied.

The Veteran’s service-connected left lower extremity sensory dysfunction associated with his lumbar spine disability has been rated 10 percent under Code 8520 since April 13, 2010 (the date such was diagnosed on VA examination). Sciatic nerve impairment is rated under Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia).  For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve.  The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  See 38 C.F.R. § 4.124a. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 

Under Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. 38 C.F.R. § 4.124a. (The ratings under Code 8520 are equivalent to or higher than the ratings under codes pertaining to other peripheral nerves of the lower extremities.)  The terms “mild,” “moderate” and “severe” are not defined in VA’s Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.

As the left lower extremity sensory dysfunction is a manifestation of the Veteran’s lumbar spine disability, some of the relevant factual background is outlined above.  However, additional relevant evidence is summarized here, for ease of review and analysis.

On April 2010 VA examination, the Veteran reported pain in his back and both legs, exacerbated by physical activity and laying/sitting too long.  His gait was normal; walking was steady.  There was no difficulty with weight-bearing, balancing, or ambulation.  Neurological examination of the lower extremities showed motor function was within normal limits; there was no lumbosacral motor weakness.  Sensory function (tested with pin prick) was abnormal “with findings of partial sensory loss of the left leg and foot.”  Specifically, sensory deficit was noted in left lateral thigh, back of the thigh, front leg, medial leg, lateral leg, dorsal foot, and lateral foot.  Cutaneous reflexes were normal.  The diagnoses included peripheral nerve involvement of “the sciatic nerve which affects the left side of the body.  There are no complications.”  

At the October 2016 Board hearing, the Veteran testified that he has the sensations of cramps and “pins and needles” in his legs in bed, and gets up to “try to walk it off,” or has his wife massage his legs.  

On September 2017 VA (fee basis) back examination, the Veteran reported numbness and tingling in both lower extremities.  Strength, reflex, and sensory testing was normal.  Straight leg raising test was positive bilaterally.  The Veteran reported bilateral mild intermittent pain, paresthesias/dysesthesias, and numbness.  The examiner diagnosed bilateral mild radiculopathy, but no other neurologic abnormalities.  

On September 2017 VA (fee basis) peripheral nerves examination, similar symptoms were reported as on the back examination.  The examiner diagnosed bilateral, mild, incomplete paralysis of the sciatic nerve.  The Veteran did not use an assistive device for locomotion.  The examiner opined that such disability did not impact the Veteran’s ability to work.  

On November 2020 VA (back) examination, the Veteran reported back pain that radiates to both legs, sciatic pain, and a feeling of pins and needles on both feet.  Strength and reflex tests were normal.  Sensory testing showed decreased (but not absent) sensation in the left lower leg/ankle and foot/toes.  Straight leg testing was negative bilaterally.  The Veteran reported left lower extremity moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness.  The examiner opined that the left lower extremity radiculopathy was mild.  [Based on her examination and file review, she opined that left lower extremity radiculopathy is a more accurate diagnosis than sensory dysfunction.]     

Upon longitudinal review of the evidence, the Board finds that a rating in excess of 10 percent for left lower extremity sensory dysfunction (alternatively identified as left lower extremity radiculopathy on November 2020 examination) is not warranted for any period under consideration.  On September 2017 VA (fee basis) back and peripheral nerves examinations, left, mild, incomplete sciatic nerve paralysis was diagnosed.  And on November 2020 VA (fee basis) back examination, the examiner diagnosed mild left lower extremity radiculopathy.  Although the April 2010 examiner did not specify whether the findings of partial sensory loss of the left leg and foot on examination were mild, moderate, moderately severe, or severe, the examiner did state that “there are no complications” regarding the left sciatic nerve involvement.  Other than moderate intermittent pain reported on November 2020 examination, the Veteran otherwise consistently reported (and the examiners consistently noted) mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness of the left lower extremity.  Those examinations also consistently found normal left lower extremity strength and reflexes.  Such objective examination findings weigh against a finding of moderate or greater incomplete nerve paralysis of the left lower extremity. Accordingly, the preponderance of the evidence is against this claim.  Therefore, the benefit of the doubt rule does not apply; the appeal seeking a rating in excess of 10 percent for left lower extremity sensory dysfunction (or radiculopathy) must be denied.  38 U.S.C. § 5107(b); Gilbert, supra.

8. Entitlement to a rating in excess of 10 percent for left posterior neck scar prior to September 11, 2020, and in excess of 10 percent for left posterior neck and lower back (donor site) scar from September 11, 2020, is denied.

A July 2017 Board decision denied a rating in excess of 10 percent for posterior neck scar.  The Veteran appealed that decision to the CAVC, resulting in a September 2018 CAVC Memorandum Decision which vacated and remanded the matter.  The CAVC noted that for purposes of evaluating skin disabilities under 38 C.F.R. § 4.118, Code 7800, Note (1) (for scars of the head, face, or neck), there are eight characteristics of disfigurement, and found that the Board did not make a finding regarding the adequacy of the April 2010 examination.  Accordingly, the Board remanded the matter in August 2019 for a new examination, as discussed further below.

On remand, a November 2020 rating decision, in relevant part, granted service connection for a lower back (donor site) scar effective September 11, 2020, recharacterized the posterior neck scar disability to include the lower back (donor site) scar effective September 11, 2020, and continued the 10 percent rating for such disability under Code 7804.    

Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805.  

Under Code 7800 (for scars of the head, face, neck due to causes other than burns), a 10 percent rating is warranted for one characteristic of disfigurement.  A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement (outlined below).  A 50 percent rating is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement.  A (schedular maximum) 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118. See 38 C.F.R. § 4.118, Code 7800.

Note (1) to Code 7800 states that the 8 characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; or skin indurated and inflexible in an area exceeding six square inches.

Code 7801 applies to burn scars or other scars, not of the head, face, or neck, that are associated with underlying soft tissue damage.  A 10 percent rating is assigned for areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters).  A 20 percent rating is assigned for areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters).  A 30 percent rating is assigned for an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters).  A 40 percent rating is assigned for an area or areas of at least 144 square inches (929 square centimeters).  38 C.F.R. § 4.118, Code 7801. 

Code 7802 applies to burns scar or other scars, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  A 10 percent (maximum) rating is provided for scars with an area or areas of at least 144 square inches (929 square cm).  38 C.F.R. § 4.118, Code 7802.

Code 7804 (for scars that are unstable or painful) provides for a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent (maximum) rating for five or more qualifying scars.  [Note (1) provides 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 10 percent may be added to the evaluation if one or more scars are both unstable and painful.  Under Code 7805, any disabling effect(s) not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code.  38 C.F.R. § 4.118. 

On April 2010 VA (fee basis) examination, the Veteran reported that his left posterior neck scar was painful and tender to touch, and that the skin broke down daily.  On examination, a linear scar 2 cm by 0.2 cm was noted.  The scar was not painful on examination; there was no skin breakdown.  There was no edema, inflammation, or keloid formation.  The scar was superficial with no underlying tissue damage; was not disfiguring; and did not limit motion or function.  

At the October 2016 Board hearing, the Veteran testified that his neck scar is visible, tender, sore, and “swells up every now and then.”  On questioning by the undersigned, he explained “the scar doesn’t open up, it just tender.  It’s very sensitive, you know.  Even if I get a haircut, I make sure they don’t touch it.  It just very irritating.”  

On September 2017 VA (fee basis) neck examination, the posterior neck scar was 3 cm by 1 cm.  The examiner noted the scar was not painful or unstable.  

On September 11, 2020 VA (fee basis) scars examination, a left lower back scar (“bone graft site for neck fusion”) and a left posterior neck scar were diagnosed.  The examiner described the lower back scar as tender/sensitive, but not unstable with frequent loss of covering of skin.  The scar was 4 cm by 0.5 cm; there was no underling soft tissue damage.  The examiner described the posterior neck scar as tender, but not unstable with frequent loss of covering of skin.  The scar was 5 cm by 0.5 cm.  There was no elevation, depression, adherence to underlying tissue, or missing underlying tissue.  There was hypopigmentation (2.5 cm2) and abnormal texture (2.5 cm2), described as “irregular.”  There was no hyperpigmentation or induration and inflexibility.  There was no gross distortion or asymmetry of facial features or visible/palpable tissue loss.  The scars did not result in functional loss.      

On November 2020 VA (fee basis) neck examination, the posterior neck scar was described as 5 cm by 0.5 cm; the Veteran reported it was “sensitive to touch with pain.”  The lower mid back (donor site) scar was 3 cm by 0.5 cm and described as “well healed no pain.”   On November 2020 VA (fee basis) scars examination, a lower back (donor site) and a posterior neck scar were diagnosed.  The lower back scar was described the as 3 cm by 0.5 cm, and “well healed no pain.”  The scar was not unstable, was not due to a burn, and did not have underlying tissue damage.  The neck scar was described as 5 cm by 0.5 cm and “sensitive to touch with pain.”  It was not unstable.  There was no elevation, depression, adherence to underlying tissue, or missing underlying tissue.  There was hyperpigmentation (2.5 cm2), but not hypopigmentation, induration and inflexibility, or abnormal texture.  There was not gross distortion or asymmetry of facial features or visible or palpable tissue loss.  There was no limitation of function or impact on his ability to work. 

The Veteran’s posterior neck scar has been rated 10 percent throughout under Code 7804.  [The issue was recharacterized in the November 2020 rating decision to include consideration of a lower back (donor site) scar, effective September 11, 2020 and remains rated 10 percent.]  

Codes 7801 (for burn scars or scars associated with underlying soft tissue damage) and 7802 (for scars with an area or areas of at least 144 square inches) are not for consideration, as burn scars and underlying tissue damage are not shown.

Turning to consideration of Code 7804, to warrant the next higher (20 percent) rating, the evidence must show three or four scars that are stable or painful, or that the neck scar was both painful and unstable (under Note (2)).  Prior to September 11, 2020 (when the neck scar was rated by itself), the evidence showed only one posterior neck scar (not three or four), and the evidence does not support the neck scar was both painful and unstable.  On April 2010 examination, the scar was not painful and there was no skin breakdown.  Although the Veteran reported the skin breaks down daily, such was not found on examination.  Furthermore, at the October 2016 hearing, the Veteran testified that “the scar doesn’t open up, it just tender.”  On September 2017 examination, the neck scar was found to be not painful or unstable.  The Board finds the contemporaneous clinical findings (on medical examination by medical professionals) and the Veteran’s sworn testimony (that the scar is not unstable) more probative than his report on April 2010 examination that his neck scar breaks down daily (such is inconsistent with clinically recorded findings).  Accordingly, prior to September 11, 2020, the Board finds a rating in excess of 10 percent is not warranted. 

From September 11, 2020, when the neck scar is rated with a lower back (donor site) scar, the evidence show 2, and not 3 or 4, scars that are stable or painful.  Additionally, while the Board acknowledges the Veteran’s reports that the neck and lower back scars are tender/painful, neither scar is shown to be unstable.  See September and November 2020 scars examination reports.  Accordingly, a rating in excess of 10 percent for the Veteran’s left posterior neck and lower back (donor site) scars is not warranted from September 11, 2020.  

Finally, the analysis turns to consideration of Code 7800 (for scars of the head, face, or neck).  To warrant the next higher (30 percent) rating under Code 7800, the evidence must show two or three characteristics of disfigurement.  [The evidence does not show visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips).]  The Board notes that the neck scar was described as 1 cm wide on September 2017 neck examination.  However, a second characteristic of disfigurement is not shown.  Although the neck scar was noted to by hypopigmented with “irregular” texture on September 2020 scars examination, and hyperpigmented on November 2020 scars examination, it did not exceed 39 square centimeters (as required to qualify as a characteristic of disfigurement).  Throughout, the neck scar has not been described as 13 cm or more in length, elevated or depressed on palpation, with adherence to underlying tissue, with soft tissue missing, or with skin indurated and inflexible.  See April 2010 VA examination report; see also September 2017 neck, September 2020 scars, November 2020 neck, and November 2020 scars examination reports.  Accordingly, two or more characteristics of disfigurement are not shown at any time (so as to warrant the next higher rating). 

 Considering the foregoing, the Board finds the preponderance of the evidence is against the claim.  A rating in excess of 10 percent for left posterior neck scar (including with consideration of the lower back (donor scar) from September 11, 2020) is not warranted.

REASONS FOR REMAND

9. Entitlement to a rating in excess of 10 percent for peptic ulcer disease

At the November 2020 VA (fee basis) stomach and duodenal conditions examination, the Veteran reported that he underwent esophagogastroduodenoscopy (EGD) “last week” (results unknown) and had “a follow up visit next week.”  It is unclear whether such was/would be at a VA or non-VA facility.  All outstanding treatment records pertaining to the Veteran’s peptic ulcer disease must be sought and obtained on remand.  Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016).  

10. Entitlement to a TDIU rating prior to September 8, 2017

As noted above, a September 2018 rating decision granted TDIU effective September 8, 2017.  The claim for a TDIU rating prior to September 8, 2017 (raised during the claims for increase) remains on appeal and is inextricably intertwined with the claim being remanded.  Appellate consideration must be deferred pending resolution of the increased ratings claim.  See Harper v. Wilkie, 30 Vet. App. 356 (2018).  Furthermore, in light of the restoration of the 30 percent rating for the cervical spine disability and the increased staged ratings for right and left upper extremity nerve disabilities, the posture of the TDIU claim has changed, and due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim for prior to September 8, 2017 considering that changed posture.

The matters are REMANDED for the following:

Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for peptic ulcer disease.  Also ask him to provide identifying information regarding all private evaluations or treatment he has received for peptic ulcer disease (records of which are not already in the record) and submit authorizations for VA to secure complete clinical records of all such evaluations and treatment, including specifically any treatment records pertaining to a November 2020 EGD and any follow-up treatment records. If he does so, obtain all records identified.

2. Then review the record, arrange for any further development suggested (by the results of the development sought above, such for additional records, or an examination to assess the current status of the peptic ulcer disease if records suggest worsening since the November 2020 examination), and readjudicate the claims, including specifically the matter of entitlement to a TDIU rating prior to September 8, 2017. 

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Dupont, 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.