Citation Nr: 21012703
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 20-10 717
DATE: March 5, 2021

ORDER

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for temporomandibular disorder (TMJD) is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for generalized anxiety disorder with depressive symptoms is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lumbar degenerative disc disease with small focal central disc herniation is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for right wrist sprain is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for status post right thumb fracture, healed, with tenderness and decreased range of motion, with periarticular osteopenia is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, left index finger is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, right thumb is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, left knee, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, right knee, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, left ankle, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, right ankle, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for tinnitus is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of extension is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of extension is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of flexion is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of flexion is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with impairment of thigh is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with impairment of thigh is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, left foot, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, right foot, is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for recurrent urinary tract infection is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for left inguinal muscle strain is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for right inguinal muscle strain is denied.

Entitlement to an effective date prior to June 22, 2018, for the award of service connection for residual scar, left index finger, due to laceration is denied.

Entitlement to a 40 percent rating for TMJD is granted.

Entitlement to an initial rating of 70 percent (increased from 50 percent), but no higher, for generalized anxiety disorder with depressive symptoms (including sleep issues) is granted.

Entitlement to a rating in excess of 10 percent for right wrist sprain is denied.

Entitlement to a rating in excess of 10 percent for status post right thumb fracture, healed, is denied.

Entitlement to a rating in excess of 10 percent for peripheral neuropathy, median nerve, left index finger is denied.

Entitlement to a rating in excess of 10 percent for peripheral neuropathy, median nerve, right thumb is denied.

Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, left knee is denied.

Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee is denied.

Entitlement to a rating in excess of 10 percent for lateral collateral ligament sprain, left ankle is denied.

Entitlement to a rating in excess of 10 percent for lateral collateral ligament sprain, right ankle is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a compensable rating for hallux valgus of the left foot is denied.

Entitlement to a compensable rating for hallux valgus of the right foot is denied.

Entitlement to an initial rating of 10 percent (increased from noncompensable), but no higher, for recurrent urinary tract infection is granted.

Entitlement to a compensable rating for left inguinal muscle strain is denied.

Entitlement to a compensable rating for right inguinal muscle strain is denied.

Entitlement to a compensable rating for residual scar, left index finger, due to laceration is denied.

Entitlement to a 10 percent rating based upon multiple, noncompensable service-connected disabilities, is denied.

Entitlement to service connection for a disability of the left hand fourth digit associated with laceration or numbness is denied.

Entitlement to service connection for a disability of left wrist pain / tendonitis is denied.

REMANDED

The issue of entitlement to a rating in excess of 10 percent for limitation of extension associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

The issue of entitlement to a compensable rating for limitation of flexion associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

The issue of entitlement to a compensable rating for impairment of thigh associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

The issue of entitlement to a rating in excess of 10 percent for limitation of extension associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

The issue of entitlement to a compensable rating for limitation of flexion associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

The issue of entitlement to a compensable rating for impairment of thigh associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

The issue of entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease with small focal central disc herniation at L5-S1 is remanded.

The issue of entitlement to a further increased rating for TMJD, currently rated 40 percent disabling (as a result of the Board’s determination in this decision), is remanded.

The issue of entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran has been awarded service connection for TMJD based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

2. The Veteran has been awarded service connection for generalized anxiety disorder with depressive symptoms based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

3. The Veteran has been awarded service connection for lumbar degenerative disc disease with small focal central disc herniation based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

4. The Veteran has been awarded service connection for right wrist sprain based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

5. The Veteran has been awarded service connection for status post right thumb fracture, healed, with tenderness and decreased range of motion, with periarticular osteopenia based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

6. The Veteran has been awarded service connection for peripheral neuropathy, median nerve, left index finger based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

7. The Veteran has been awarded service connection for peripheral neuropathy, median nerve, right thumb based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

8. The Veteran has been awarded service connection for patellofemoral pain syndrome, left knee based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

9. The Veteran has been awarded service connection for patellofemoral pain syndrome, right knee based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

10. The Veteran has been awarded service connection for lateral collateral ligament sprain, left ankle, based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

11. The Veteran has been awarded service connection for lateral collateral ligament sprain, right ankle based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

12. The Veteran has been awarded service connection for tinnitus based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

13. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of extension based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

14. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of extension based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

15. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of flexion based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

16. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of flexion based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

17. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with impairment of thigh based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

18. The Veteran has been awarded service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with impairment of thigh based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

19. The Veteran has been awarded service connection for hallux valgus, left foot, based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

20. The Veteran has been awarded service connection for hallux valgus, right foot, based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

21. The Veteran has been awarded service connection for recurrent urinary tract infection based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

22. The Veteran has been awarded service connection for left inguinal muscle strain based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

23. The Veteran has been awarded service connection for right inguinal muscle strain based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

24. The Veteran has been awarded service connection for residual scar, left index finger, due to laceration based upon a period of service that concluded on June 21, 2018; the assigned effective date for this award is the day following her separation from active duty service.

25. The Veteran’s TMJD has manifested in limitation of interincisal range to 11 to 20 mm of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods.

26. Throughout the rating period on appeal, the Veteran’s generalized anxiety disorder with depressive symptoms (including sleep issues) is reasonably shown to have been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it is not shown to have been productive of total occupational and social impairment.

27. The Veteran’s right wrist sprain has not resulted in ankylosis and is assigned a 10 percent rating; this is the maximum evaluation authorized under Diagnostic Code 5215 for limitation of motion.

28. The Veteran’s status post right thumb fracture, healed, has not been manifested by a gap of more than 2 inches (5.1 cm.) between the thumb pad and the fingers with the thumb attempting to oppose to the fingers.

29. The Veteran’s peripheral neuropathy, median nerve, left index finger, has been manifested by no more than mild incomplete paralysis of the minor upper extremity.

30. The Veteran’s peripheral neuropathy, median nerve, right thumb, has been manifested by no more than mild incomplete paralysis of the major upper extremity.

31. The Veteran’s patellofemoral pain syndrome, left knee, has not been manifested by flexion limited to 30 degrees, nor limitation of extension, nor ankylosis, nor other impairment of the knee (such as slight instability or recurrent subluxation), nor semilunar cartilage (meniscus) pathology, nor impairment of the tibia and fibula, nor genu recurvatum.

32. The Veteran’s patellofemoral pain syndrome, right knee, has not been manifested by flexion limited to 30 degrees, nor limitation of extension, nor ankylosis, nor other impairment of the knee (such as slight instability or recurrent subluxation), nor semilunar cartilage (meniscus) pathology, nor impairment of the tibia and fibula, nor genu recurvatum.

33. The Veteran’s lateral collateral ligament sprain, left ankle, has not been manifested by marked limitation of motion.

34. The Veteran’s lateral collateral ligament sprain, right ankle, has not been manifested by marked limitation of motion.

35. The Veteran’s tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code 6260.

36. The Veteran’s hallux valgus of the left foot has not been manifested by severe disability, it has not been equivalent to amputation of great toe, and it has not been operated upon with resection of the metatarsal head.

37. The Veteran’s hallux valgus of the right foot has not been manifested by severe disability, it has not been equivalent to amputation of great toe, and it has not been operated upon with resection of the metatarsal head.

38. Throughout the rating period on appeal, the Veteran’s recurrent urinary tract infection has been manifested by the medical need for intermittent intensive management; it has not been manifested by a medical need for drainage/frequent hospitalization (greater than two times/year), nor a medical need for continuous intensive management, nor voiding dysfunction, nor increased urinary frequency, nor obstructed voiding, nor renal dysfunction.

39. The Veteran’s left inguinal muscle strain has been productive of no more than slight impairment of Muscle Group XVI.

40. The Veteran’s right inguinal muscle strain has been productive of no more than slight impairment of Muscle Group XVI.

41. The Veteran’s residual scar, left index finger, due to laceration, is not manifested by any disabling effects not considered under Diagnostic Codes 7800 to 7804; the scar is linear and measures 1.5 cm in length.

42. There is no legal entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities, as the Veteran has been granted entitlement to service connection for a number of disabilities with compensable disability ratings, effective June 22, 2018, the day following the Veteran’s separation from military service and the beginning of the rating period in this appeal.

43. The preponderance of the evidence of record is against finding that the Veteran has or has had at any time during the pendency of this appeal, a disability of the left hand fourth digit associated with laceration or numbness.

44. The preponderance of the evidence of record is against finding that the Veteran has or has had at any time during the pendency of this appeal, a disability of left wrist pain / tendonitis.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to June 22, 2018, for the award of service connection for TMJD have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

2. The criteria for an effective date prior to June 22, 2018, for the award of service connection for generalized anxiety disorder with depressive symptoms have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

3. The criteria for an effective date prior to June 22, 2018, for the award of service connection for lumbar degenerative disc disease with small focal central disc herniation have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

4. The criteria for an effective date prior to June 22, 2018, for the award of service connection for right wrist sprain have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

5. The criteria for an effective date prior to June 22, 2018, for the award of service connection for status post right thumb fracture, healed, with tenderness and decreased range of motion, with periarticular osteopenia have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

6. The criteria for an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, left index finger have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

7. The criteria for an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, right thumb have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

8. The criteria for an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, left knee, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

9. The criteria for an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, right knee, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

10. The criteria for an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, left ankle, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

11. The criteria for an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, right ankle, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

12. The criteria for an effective date prior to June 22, 2018, for the award of service connection for tinnitus have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

13. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of extension have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

14. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of extension have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

15. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of flexion have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

16. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of flexion have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

17. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with impairment of thigh have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

18. The criteria for an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with impairment of thigh have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

19. The criteria for an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, left foot, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

20. The criteria for an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, right foot, have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

21. The criteria for an effective date prior to June 22, 2018, for the award of service connection for recurrent urinary tract infection have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

22. The criteria for an effective date prior to June 22, 2018, for the award of service connection for left inguinal muscle strain have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

23. The criteria for an effective date prior to June 22, 2018, for the award of service connection for right inguinal muscle strain have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

24. The criteria for an effective date prior to June 22, 2018, for the award of service connection for residual scar, left index finger, due to laceration have not been met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400.

25. The criteria for a 40 percent rating for TMJD are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code 9905.

26. Throughout the rating period on appeal, the criteria for a rating of 70 percent rating, but no higher, for the Veteran’s generalized anxiety disorder with depressive symptoms (including sleep issues) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code 9400.

27. The criteria for a disability rating in excess of 10 percent for right wrist sprain have not been met.  38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5214, 5215 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Codes 5214, 5215 (as in effect from February 7, 2021).

28. The criteria for a disability rating in excess of 10 percent for service-connected status post right thumb fracture, healed, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, and 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5228 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Code 5228 (as in effect from February 7, 2021).

29. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy, median nerve, left index finger have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8715.

30. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy, median nerve, right thumb have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8715.

31. The criteria for a disability rating in excess of 10 percent for patellofemoral pain syndrome, left knee, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Codes 5256 to 5263 (as in effect from February 7, 2021).

32. The criteria for a disability rating in excess of 10 percent for patellofemoral pain syndrome, right knee, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Codes 5256 to 5263 (as in effect from February 7, 2021).

33. The criteria for a disability rating in excess of 10 percent for lateral collateral ligament sprain, left ankle, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Code 5271 (as in effect from February 7, 2021).

34. The criteria for a disability rating in excess of 10 percent for lateral collateral ligament sprain, right ankle, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Code 5271 (as in effect from February 7, 2021).

35. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.

36. The criteria for a compensable disability rating for hallux valgus of the left foot have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Code 5280 (as in effect from February 7, 2021).

37. The criteria for a compensable disability rating for hallux valgus of the right foot have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (as in effect prior to February 7, 2021), and 4.71a, Diagnostic Code 5280 (as in effect from February 7, 2021).

38. Throughout the rating period on appeal, the criteria for an increased 10 percent rating, but no higher, for the Veteran’s recurrent urinary infection have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115a, Diagnostic Code 7516.

39. The criteria for a compensable disability rating for left inguinal muscle strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.55, 4.56, 4.73, Diagnostic Code 5316 (as in effect prior to February 7, 2021), and 4.73, Diagnostic Code 5316 (as in effect from February 7, 2021).

40. The criteria for a compensable disability rating for right inguinal muscle strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.55, 4.56, 4.73, Diagnostic Code 5316 (as in effect prior to February 7, 2021), and 4.73, Diagnostic Code 5316 (as in effect from February 7, 2021).

41. The criteria for a compensable disability rating for residual scar, left index finger, due to laceration, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805 (as in effect prior to August 13, 2018), and 4.118, Diagnostic Code 7805 (as in effect from August 13, 2018).

42. There is no legal entitlement to a 10 percent evaluation for multiple, noncompensable service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.324.

43. The criteria for service connection for a disability of the left hand fourth digit associated with laceration or numbness have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

44. The criteria for service connection for a disability of left wrist pain / tendonitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2012 to June 2018.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA).  In a June 2018 RO rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection with initial rating and effective date assignments for 23 disabilities, denied two claims, and deferred adjudication of a claim.  In an October 2018 RO rating decision, the AOJ adjudicated the deferred claim by granting service connection for TMJD with initial rating and effective date assignments.  The Veteran appealed all of the initial rating determinations and all of the effective date determinations associated with all 24 grants of service connection in the two aforementioned RO rating decisions, and additionally appealed the June 2018 RO rating decision’s denial of a 10 percent rating based upon multiple, noncompensable, service-connected disabilities and the June 2018 RO rating decision’s denial of service connection for disabilities of the left hand fourth digit and the left wrist.

A January 2020 statement of the case recognized and addressed the Veteran’s appeal of the initial rating determination and the effective date assignment for the award of service connection for TMJD.  A March 2020 statement of the case (SOC) recognized and addressed the Veteran’s appeal of 49 issues from the June 2018 RO rating decision.  Following each SOC, the Veteran’s representative filed a time Form 9 unequivocally stating: “I want to appeal all of the issues listed on the statement of the case.”

Additionally, a March 2020 RO rating decision partially granted the Veteran’s appeal seeking a higher initial rating for her service-connected right thumb disability, revising the initial rating to 10 percent.  The Veteran maintains her appeal for a further increase of that rating.

The Board notes that the March 2020 SOC characterizes the effective date issues as each seeking “an earlier effective date for service connection and evaluation of” each service-connected disability.  The Board directly addresses all of the issues concerning effective dates for the grants of service connection in this decision.  Any further questions regarding the effective date and duration of rating assignments will be resolved as part of the accompanying set of appeal issues seeking increased initial disability rating assignments.

The Veteran’s representative has stated that the Veteran asserts entitlement to TDIU based upon each and all of her service-connected disabilities as part and parcel of her increased rating claims on appeal.  For instance, in a May 2020 letter, the Veteran’s representative stated: “The Veteran’s TDIU claim is part and parcel to her entitlement to an increased evaluation for her service-connected conditions currently pending in the March 4, 2020 and March 30, 2020 Substantive Appeals.”  A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board recognizes the Veteran’s claim(s) of entitlement to TDIU as a single issue that shall be remanded to the AOJ at this time.  While the matter of entitlement to TDIU has been raised as part of parcel of increased rating claims, many of which are resolved by this Board decision, the Board wishes to clarify that no theory of entitlement to TDIU raised in this appeal has been resolved by this decision.  The remanded single-issue of TDIU in this case includes all manners and theories of potential entitlement to TDIU raised by the Veteran in this appeal.

Effective Dates

1. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for TMJD is denied.

2. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for generalized anxiety disorder with depressive symptoms is denied.

3. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lumbar degenerative disc disease with small focal central disc herniation is denied.

4. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for right wrist sprain is denied.

5. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for status post right thumb fracture, healed, with tenderness and decreased range of motion, with periarticular osteopenia is denied.

6. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, left index finger is denied.

7. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for peripheral neuropathy, median nerve, right thumb is denied.

8. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, left knee, is denied.

9. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for patellofemoral pain syndrome, right knee, is denied.

10. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, left ankle, is denied.

11. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for lateral collateral ligament sprain, right ankle, is denied.

12. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for tinnitus is denied.

13. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of extension is denied.

14. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of extension is denied.

15. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with limitation of flexion is denied.

16. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with limitation of flexion is denied.

17. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, right hip, with impairment of thigh is denied.

18. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for trochanteric pain syndrome including trochanteric bursitis, left hip, with impairment of thigh is denied.

19. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, left foot, is denied.

20. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for hallux valgus, right foot, is denied.

21. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for recurrent urinary tract infection is denied.

22. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for left inguinal muscle strain is denied.

23. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for right inguinal muscle strain is denied.

24. Entitlement to an effective date prior to June 22, 2018, for the award of service connection for residual scar, left index finger, due to laceration is denied.

The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.

The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be 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 shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).

A veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).

In this case, the Veteran’s March 2018 claim for disability benefits was filed prior to her separation from active duty service.  No earlier claim was filed regarding any of the awards at issue in this appeal.  On June 21, 2018, the Veteran was discharged from active duty, newly becoming a veteran eligible to veteran entitlements for VA disability compensation purposes.

The Veteran’s date of separation from active duty service was June 21, 2018, concluding a period of service that began in October 2012.  The March 2018 claim resulted in 24 awards of service-connected disability compensation for separately identified disabilities, each based upon the Veteran’s single period of active duty service.  Each award has an assigned effective date of June 22, 2018, the day after discharge from active duty.  The Veteran has not identified any basis in the governing provisions regarding effective date assignments to authorize assignment of any effective date prior to the day following her separation from active service in this case.

Although the Veteran has formally initiated and perfected appeals for earlier effective dates for each of the awards, and the AOJ has recognized and adjudicated these matters, the Veteran has not otherwise presented a theory of entitlement to earlier effective dates for the Board to address in this decision.  Because there is no identifiable legal authority for awarding an effective date prior to the day following the Veteran’s separation from the period of active service upon which the awards are predicated, the Board must deny the Veteran’s appeal for each of the contested effective date assignments.

Accordingly, the appeals for effective date assignments prior to June 22, 2018, for the grants of service connection for these 24 disabilities are denied as a matter of law.  The law is dispositive in this matter.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Increased Rating

Preliminarily, the Board notes that every rating determination on appeal at this time arises from a grant of service connection for a disability effective from June 22, 2018.  This was the day following the Veteran’s separation from active duty service.  Therefore, for every rating determination, the rating period for consideration spans from June 22, 2018, to the present.

Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  An exception to this rule applies when the rating criteria are successive.  In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply.  Johnson v. Wilkie, 30 Vet. App. 245 (2018).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).  In a claim for increase in a previously established rating, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence.  Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms.  Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.  The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal.

Additional references to the Veteran’s service-connected disabilities are presented in evidence of record beyond that discussed below, including in VA medical reports associated with the Veteran’s treatment.  The additional evidence of record does not present findings that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision.

As discussed in more detail below, some of the rating determinations in this case involve recently revised regulations.  As an initial matter, the Board notes that the Veteran has not been notified as to all of the changed regulations, and the Agency of Original Jurisdiction (AOJ) has not adjudicated the Veteran’s claims under all applicable versions of the regulations.  However, to the extent of matters resolved with final determinations in this Board decision, the changes to regulations merely represent either (a) a clarification of the rating language with no substantive changes that impact the Veteran’s ratings, or (b) changes to rating provisions with no applicability to the particular types of disabilities the Veteran’s case presents in this appeal.  The Board does not find that the Veteran is prejudiced by the Board proceeding with a decision regarding these matters.

Special Considerations for Musculoskeletal Disability Ratings

Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination.  See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  

Pain may be taken into consideration when rating functional loss.  However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.”  38 C.F.R. § 4.40.  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40).  38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.”  The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.  Correia, 28 Vet. App. at 169-170.

In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation.  The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans.  VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations.  If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion.  It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joints.  When, however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when shown by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when shown by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Id.

Finally, it is the intention of the VA rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.  Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021.  See 85 Fed. Reg. 76,453 (Nov. 30, 2020).  When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary.  The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made.  See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  No evidence is of record that was created on or after the effective date and thus the amendments need not be considered herein.

25. Entitlement to a 40 percent rating for TMJD is granted.

The Veteran contends that she is entitled to a higher rating for her TMJD.  The Veteran asserts that the impairment is more severe than the assigned rating reflects.

The Veteran’s TMJD is currently rated 30 percent disabling under 38 C.F.R. § 4.150, Diagnostic Code 9905, for temporomandibular impairment.  

Under Diagnostic Code 9905, interincisal range of 0 to 10 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrant 40 percent. Interincisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent.

Interincisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent.

Interincisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrant 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants 10 percent.38 C.F.R. § 4.150.

An April 2018 VA Temporomandibular Joint Disorder rating examination report (based upon an examination conducted in March 2018) shows, in pertinent part, that the examiner unequivocally determined that the Veteran’s measured “Inter-incisal distance” was “11-20mm,” and the examiner unequivocally determined that “Yes,” the Veteran “require[s] a mechanically altered foods diet, which has been physician verified or documented, due to the temporomandibular disorder.”  These findings are consistent with other findings, including the VA examiner’s description that the Veteran “has very limited ROM.  This forces her to talk in a way where she barely has to open her mouth.  She cannot have nor chew most food.”

The Board finds no significantly contrary indications of record, and therefore finds the April 2018 VA examination report’s findings are persuasive competent evidence.  These findings clearly and unequivocally indicate that the Veteran’s TMJD causes impairment meeting the criteria for a 40 percent rating.  The Board finds that a 40 percent rating is warranted throughout the entire appeals period.  To this extent, the appeal is granted.

The Board finds that the Veteran’s entitlement to a 40 percent rating is clear from the existing evidence of record.  However, the evidence of record is inadequate to support a further adjudicative resolution of the appeal for additional increased compensation for TMJD for reasons discussed in the remand section, below.

26. Entitlement to an initial rating of 70 percent (increased from 50 percent), but no higher, for generalized anxiety disorder with depressive symptoms (including sleep issues) is granted.

The Veteran contends that she is entitled to a higher rating for her service-connected generalized anxiety disorder with depressive symptoms (including sleep issues), asserting that the impairment is more severe than the assigned 50 percent rating reflects.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

The Veteran’s service-connected psychiatric disorder is currently rated 50 percent disabling from the initial date of the award of service-connection: June 22, 2018.  The entire period of the award of service connection is before the Board on appeal in this case. As discussed below, the Board finds that reasonable doubt can be resolved in the Veteran’s favor to conclude that the criteria for an increased 70 percent rating have been met throughout the rating period for consideration.

The remaining issue in this appeal will then be whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent.  The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent.  The Veteran’s symptoms have more closely approximated the symptoms associated with a 70 percent rating and have resulted in a level of impairment that most closely approximate the level of impairment associated with a 70 percent rating.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

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; or memory loss for names of close relatives, own occupation or own name.

A November 2020 private psychological examination and medical opinion regarding the Veteran’s mental health shows that the Veteran “reported her psychiatric symptoms to impair her performance of activities of daily living,” including that she “will only shower every two or three days because of too much anxiety and a fear of being in the shower alone.”  Regarding household activities, she described “that just goes to the wayside sometimes, but [she has] to be obsessive about checking that someone is in the house and have to check all of the rooms and unplug all of the things out of the walls before [she] would leave the house.”  The Veteran further reported that she “feels confined to her home due to her severe anxiety symptoms,” and she “tries to go to the store in the early morning or at night to avoid people and completely avoids large stores.”

The November 2020 examiner noted that the Veteran reported the following symptoms: 

persistent worrying or anxiety about a number of areas that are out of proportion to the impact of the events, overthinking plans and solutions to all possible worst-case outcomes, perceiving situations and events as threatening, event when they aren’t, difficulty handling uncertainty, indecisiveness and fear of making the wrong decision, inability to set aside or let go of a worry, inability to relax, feeling restless, feeling keyed up or on edge, difficulty concentrating, or the feeling that your mind goes “blank,” irritability, sweating, racing heart, muscle tension, chronic sleep disturbance, and ongoing negative beliefs.  Since June 2018, the Veteran specified her anxiety symptoms have been chronic and severe.

The November 2020 examination report shows that the Veteran reports “anxiety happens about anything and [she is] constantly worried,” and that as a result she “sometimes locks [herself] in the bathroom and turns the lights off to calm down.”  The examiner noted that the Veteran’s “anxiety has resulted in some obsessive rituals,” explaining that the Veteran is “convinced [her] apartment is going to catch fire and before [she leaves her apartment] everything that is plugged in has to be unplugged.”  Furthermore, “[i]f she thinks she forgot to unplug something, she will turn her vehicle around to return home and check.”  The Veteran also reported that she “checks the locks on her doors at least a dozen times per day and checks the closets multiple times per day.”  Additionally, the Veteran reported “chronic sleep impairment,” and consequently she “constantly feels tired, negatively affecting her concentration on daily tasks such as driving.”  The Veteran described that her “anxiety has put a strain on her relationship with her family because she isolates herself as much as possible.”  The Veteran “noted that while she is out with her partners, she is constantly checking her phone for calls or emails of anything ‘bad happening at the apartment.’”  The Veteran also described “calling [her] boyfriend until he answers even if [she knows] he is napping because [she is] afraid that he died.”  The Veteran stated that “she does not have many friends because of her psychiatric symptoms.”

After interviewing/examining the Veteran, discussing the pertinent medical evidence of record, the November 2020 examiner concluded: “In my professional opinion, from at least June 2018 to the present, [the Veteran]’s service-connected GAD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.”  The Board notes that this conclusion exactly matches the applicable rating criteria characterization of impairment warranting a 70 percent rating, and this does not describe impairment meeting the criteria for a 100 percent rating.

The November 2020 examiner goes on to state the Veteran’s occupational and social impairment with deficiencies in most areas is:

due to symptoms of depressed mood; anxiety; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty adapting to stressful circumstances; obsessional rituals which interfere with routine activities and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.

The November 2020 examiner cites that “[t]hese symptoms have been documented in the veteran’s medical records.  The examiner discussed that:

In the 03/29/2018 VA Exam for Mental Disorders, [the Veteran]’s GAD was noted to be moderate to severe.  She reported having difficulty sleeping because her mind races.  She reported waking up every hour, with an average of 4-5 hours of sleep per night.  She reported awaking with a racing heart and difficulty breathing every couple of weeks.  Additionally, she reported being ‘obsessive’ about locking her door to ensure the safety of her house.  She further endorsed frequent times of excessive anxiety and worry that she has difficulty controlling; restlessness; fidgeting and shaking; and losing her train of thought several times per week.  Furthermore, she endorsed panic attacks 2 times per month that cause her to feel disoriented [and] dizzy.  Suicidal ideations, depressed mood, loss of interest in activities, constant fatigue, lack of drive and motivation, loss of focus and concentration, suspiciousness, memory loss, flattened affect, and dysphoric mood were additionally documented.

The November 2020 examiner also noted a July 2018 VA treatment note documenting the Veteran’s report of “obsessive-compulsive thoughts, escalated anxiety, irrational thoughts that she is unable to calm, and the feeling that ‘something bad is always going to happen.’”  The discussion of the July 2018 VA treatment note further notes its documentation that the Veteran “wakes up constantly though the night to check the windows and doors,” that “she felt tired because of her anxiety’s interference with her sleep,” and that “her anxiety was negatively impacting her relationship with her boyfriend.”

The November 2020 examiner furthermore discussed the Veteran’s September 2020 “Declaration” as significantly detailing the Veteran’s “almost daily anxiety attacks, triggered by small things such as worrying that she left the oven on,” “at least a dozen times per day, she makes sure her doors are locked,” and “checks her closets multiple times per day because she worries someone could be in her house.”  The discussion notes the Veteran’s report that she “sleep 4 hours per night,” that she “has difficulty focusing on daily tasks like driving,” that “[h]er anxiety has put a strain on her relationship with her family because she isolates herself as much as possible,” and “[i]t is almost impossible for her to maintain relationships because she has difficulty trusting others or feels they do not understand her anxiety.”  The discussion of the Veteran’s declaration notes that her “anxiety attacks are often triggered when she is around crowds or someone she does not know, “ and that “[a]bout 3 to 5 times per month, her GAD is so severe that she is unable to calm herself down.”

The Board’s review of the evidentiary record, including the evidence cited by the November 2020 examiner, is reasonably consistent with the November 2020 examiner’s discussion and assessment of the Veteran’s mental health history.

The March 2018 VA mental disorder rating examination report notes the Veteran’s difficulties at that time, including: “constant fatigue,” “loss of focus and concentration,” “highly irritable with verbal explosiveness three times a week,” “panic attacks two times per month …. her heart races … with labored breathing.  She also feels disoriented, has tunnel vision, gets dizzy, and has moist palms.”

The March 2018 VA examination report’s inventory of the Veteran’s symptoms included “Difficulty in adapting to stressful circumstances, including work or a worklike setting,” a symptom contemplated as an exemplar in the rating criteria for a 70 percent rating.  Although the March 2018 VA examiner’s checkbox inventory of pertinent symptoms indicated that the Veteran did not have “Suicidal ideation,” the report elsewhere clearly states that the Veteran reports: “She has suicidal ideations.”  The Board finds that the contradictory indications regarding the presence or absence of suicidal ideation in the March 2018 VA examination report are reasonably resolved by recognizing the Veteran’s documented report of suicidal ideation; the failure of the VA examiner to check the box for “Suicidal ideation” in the symptom checklist appears to have simply been an error.  Significantly, the Veteran’s suicidal ideation shown in March 2018 is another exemplar in the rating criteria for a 70 percent rating.  (The report further notes that the VA examination report indicates that “[s]he denies current danger of self-harm,” and the VA examiner assessed that the Veteran “does not appear to pose any threat of danger or injury to self or others.”)  

The March 2018 VA examiner characterized the Veteran’s overall level of impairment as “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.”  This characterization clearly matches the description of impairment contemplated by the rating criteria for a 50 percent rating.  However, the Board notes that the November 2020 private examining expert also provided a competent medical opinion discussing the symptoms shown in the March 2018 VA examination report and throughout the rating period, and the November 2020 private examiner’s opinion specifically indicates that the Veteran’s mental health symptomatology throughout the rating period “has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood,” matching the description of impairment contemplated by the rating criteria for a 70 percent rating.

The Board finds that reasonable doubt can be resolved in the Veteran’s favor to find that the criteria for a 70 percent rating have been met throughout the rating period in this case.  The Board makes this finding with attention to the fact that the November 2020 private medical opinion asserts that the level of impairment contemplated criteria for a 70 percent rating is shown based upon symptoms contemplated in the rating criteria exemplars, and some of the most pertinent symptoms amongst those exemplars are shown even in the March 2018 VA examination report.  Although the March 2018 VA examiner’s final characterization of impairment disagreed with the November 2020 examiner’s characterization of impairment, the March 2018 VA examiner did recognize that the Veteran’s symptoms included “Difficulty in adapting to stressful circumstances, including work or a worklike setting,” and suicidal ideation.  The Board finds that the November 2020 private medical opinion’s assessment of the severity of the Veteran’s mental health impairment is reasonably supported by the cited evidence and the other probative evidence of record, including the symptoms shown in the March 2018 VA examination report.  The November 2020 private medical opinion supports its conclusion with a persuasive rationale supported by the evidence of record, and specifically addresses the Veteran’s impairment throughout the entire rating period in this case.  Resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 70 percent rating are met throughout the rating period.  

The Board now must further consider whether the criteria for a 100 percent rating are met in this case.

VA and private treatment records, a March 2018 VA examination report, a November 2020 private examination report with medical opinion, and the Veteran’s lay statements show that the Veteran’s service-connected psychiatric disorder has been manifested by symptoms associated with a 70 percent rating (such as suicidal ideation, obsessional rituals which interfere with routine activities, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances), and a symptom associated with a 100 percent rating (intermittent inability to perform activities of daily living).

The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).  However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating.  The March 2018 VA examination report showed that the Veteran denied “current danger of self-harm,” and the VA examiner assessed that the Veteran “does not appear to pose any threat of danger or injury to self or others.”  The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records throughout the rating period, and during the March 2018 VA examination.  The Board finds that the evidence does not show a persistent danger of self-harm.

The Board also notes that the Veteran’s description of symptoms include panic attacks that involve a feeling of being “disoriented,” but this is described in connection with feeling dizzy and experiencing tunnel vision.  The Board finds no indication that the Veteran’s impairment has caused her to become disoriented with regard to time or place in the manner contemplated by the rating criteria for a 100 percent rating and its exemplars associated with total impairment.

The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating.  The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas.  Both the March 2018 VA examination report and the November 2020 private examination report provide assessments of the Veteran’s impairment that specifically match the rating criteria for ratings no higher than 70 percent.  The Board finds that the evidence of record does not show total occupation and social impairment; the evidence indicates that the Veteran is actually employed (including in an April 2019 VA treatment report), and the record’s depictions of the Veteran’s considerable difficulties maintaining relationships do not indicate total social impairment.  The Veteran’s symptoms most closely approximate occupational and social impairment with deficiencies as contemplated by the criteria for a 70 percent rating, and not total occupational and social impairment as contemplated by the criteria for a 100 percent rating.

While the Veteran is shown to experience intermittent inability to perform activities of daily living, this symptom can only support entitlement to a 100 percent rating to the extent that it is productive of total occupational and social impairment as contemplated by the criteria for a 100 percent rating.  Because the Veteran’s occupational and social impairment is not total, despite the significant deficiencies involved, the Veteran’s intermittent inability to perform activities of daily living is not shown to more nearly meet the criteria for a 100 percent rating.  Rather, the degree of impairment resulting from the Veteran’s symptoms is occupational and social impairment with reduced reliability and productivity with deficiencies in most areas, and this meets the criteria for a 70 percent rating, not a 100 percent rating.

While the Veteran did experience symptoms contemplated by a 100 percent rating, in particular intermittent inability to perform activities of daily living, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating.  As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating.  While evidence discussed above shows that the Veteran reported perceived difficulties with relationships are caused by her psychiatric symptoms, the same evidence and treatment records during the rating period contain reports that the Veteran has not been experiencing total social impairment.  The March 2018 VA examination report shows that the Veteran reported that “[s]he had a good relationship with the family while growing up, and she still does.  She is … in a relationship, which is going well.  She has friends, she does socialize….”  A July 2018 VA treatment report shows “Close relationships, family, friends: move to [her current locale] to be with her boyfriend, parents live 7 hours away, admits that anxiety is negatively impacting relationship with her boyfriend,” and the November 2020 private examination report shows that the Veteran’s relationship with her boyfriend continued, but she “does not have many friends because of her psychiatric symptoms.”  The Veteran’s September 2020 written testimony describes that “anxiety has put a strain on my relationship with my family,” “[i]t is almost impossible for me to maintain my relationships because my anxiety makes it difficult,” and “I also have difficulty establishing relationships.”  This Board finds that this evidence reflects the Veteran’s significant social difficulty from deficiencies interfering with her social functioning and relationships, but the evidence does not indicate total social impairment.

To the extent that some of the Veteran’s symptoms described in the evidence, as discussed above, may not exactly match the exemplars listed with a specific rating, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating.  See 38 C.F.R. § 4.126.  As discussed above, the Board finds that the evidence persuasively indicates that the Veteran’s symptoms are productive of occupational and social impairment with deficiencies in most areas, and -not- total occupational and social impairment.  The Board has explained, above, that the Veteran’s intermittent inability to perform activities of daily living does not meet the criteria for a 100 percent rating in this case where it is not productive of total occupational and social impairment.  The Veteran’s symptomatology is not otherwise shown to include symptoms of comparable severity, frequency, and duration as the remaining listed exemplars: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating.  The criteria for a 100 percent rating are not met and the appeal must be denied to that extent.

In summary, the Board finds that a grant of an increased 70 percent rating throughout the rating period is warranted for the Veteran’s service-connected psychiatric disorder.  The Board finds that the preponderance of the evidence is against entitlement to a further increased rating.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

27. Entitlement to a rating in excess of 10 percent for right wrist sprain is denied.

The Veteran’s service-connected right wrist disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215.  The highest possible schedular rating for the right wrist disability on the basis of limitation of motion is 10 percent; it is not possible for the Veteran to receive a higher rating under Diagnostic Code 5215.  A wrist disability may receive a higher disability rating through application of 38 C.F.R. § 4.71a, Diagnostic Code 5214, but this is only available for ankylosis of the wrist.  

The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint, citing Stedman’s Medical Dictionary 87 (25th ed. 1990)).  The Veteran has not alleged that her right wrist is ankylosed in this case, and no evidence of record otherwise suggests ankylosis of the right wrist.

The Veteran has not alleged that the schedular rating provisions are inadequate to rate her right wrist disability.  As the Veteran is already receiving the maximum schedular disability rating for her right wrist disability, the claim is denied.

Aside from the matters addressed in this Board decision, neither the Veteran nor her attorney raised any other issues, nor have any other issues been reasonably raised by the record in connection with the right wrist increased rating claim.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

28. Entitlement to a rating in excess of 10 percent for status post right thumb fracture, healed, is denied.

The Veteran’s right thumb fracture residuals have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5228, for limitation of motion of the thumb.  The Board notes that 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint.

Diagnostic Code 5228 provides a 10 percent rating where loss of thumb motion results in a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  38 C.F.R. § 4.71a.  A maximum schedular 20 percent disability rating is assigned for loss of thumb motion that causes a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  Id.  Ratings under Diagnostic Code 5228 are the same, regardless of whether the disability in question involves the thumb on the major (dominant) or minor hand.  Id.  

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right thumb fracture residuals.

The April 2018 VA hand and finger examination report documents the Veteran’s description that she “continues to have pain and stiffness affecting her right thumb joint,” and that she “also has developed tingling and numbness at the right thumb, but denies any swelling.”  (The Board notes that the tingling and numbness of the right thumb is contemplated in the Veteran’s separate service-connected award regarding “Peripheral Neuropathy, Median Nerve, Right Thumb.”  The rating for that disability is addressed in a separate section of this Board decision.)  The Veteran described that “flare ups of the right hand can be described as sharp pain with stiffness, 7/10 pain level, numbness and tingling.”  The Veteran described functional impairment featuring “[h]ard to type or write for long periods of time.”  She also reported that “[s]he is limited in frequent handling, gripping and writing.”

Range of motion testing revealed there was no gap between the pad of the thumb and fingers.  While there was otherwise an abnormality / limitation of flexion of the metacarpophalangeal (MCP) joint of the right thumb to 85 degrees (with normal being 100 degrees), the VA examiner found that the range of motion itself did not contribute to a functional loss. The examiner noted that there was pain on examination and that the pain causes functional loss.  On observed repetitive use, the VA examiner noted additional functional loss or range of motion caused by pain, lack of endurance, and incoordination.  There remained no gap between the pad of the thumb and fingers.  While there was otherwise an abnormality / limitation of flexion of the MCP joint of the right thumb to 80 degrees (with normal being 100 degrees), this did not leave a gap between the pad of the thumb and fingers.

The VA examiner accepted the Veteran’s description of symptoms during repeated use over time, finding that “[t]he examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.”  Based upon the Veteran’s description of symptoms, the VA examiner noted that pain, lack of endurance, and incoordination caused functional loss following repeated use over time.  With regard to the functional loss, the VA examiner determined that it was possible to describe in terms of range of motion.  The VA examiner reported, based upon the Veteran’s account, that the Veteran’s right thumb MCP joint had flexion limited to 80 degrees (with normal being 100 degrees), but the VA examiner confirmed that there was still not any gap between the pad of the thumb and the fingers.

The VA examiner accepted the Veteran’s description of symptoms during flare-ups, finding that “[t]he examination is medically consistent with the Veteran’s statements describing functional loss during flare up.”  Based upon the Veteran’s description of symptoms, the VA examiner noted that pain, weakness, lack of endurance, and incoordination caused functional loss during flare-ups.  With regard to the functional loss, the VA examiner determined that “Yes,” it was possible to “describe in terms of Range of Motion.”  The VA examiner reported, based upon the Veteran’s account, that the Veteran’s right thumb MCP joint had flexion limited to 75 degrees (with normal being 100 degrees), but the VA examiner confirmed that “No,” there was still -not- any “gap between the pad of the thumb and the fingers.”

The VA examiner found that there was objective evidence of pain on passive range of motion testing, and there was objective evidence of pain on non-weight bearing testing, together with the other pain noted in range of motion testing and in the descriptions of functional impairment after repetitive use and during flare-ups.  The Board notes that the Veteran’s pain was expressly accounted for in the VA examiner’s documentation of the extent of the Veteran’s functional impairment after repetitive use and during flare-ups, and the VA examiner reported, based on the Veteran’s own description of impairment, that the function impairment did not reach the level of any gap between the pad of the thumb and the fingers.

The Veteran’s right thumb disability is already rated 10 percent disabling based upon painful limitation of motion.  The evidence is against finding that any additional limitation of motion is consistent with the rating criteria for a 20 percent disability rating under Diagnostic Code 5228.  The Board finds no evidence showing that the Veteran’s limitation of motion of the right thumb manifested in a gap exceeding 5.1 cm. between the thumb pad and the fingers during the appeal period such that a 20 percent disability rating would be warranted, even considering additional functional loss, as the examiner accounted for such.

The Board finds that the evidence does not indicate that the Veteran’s right thumb disability has manifested in impairment during the rating period on appeal that caused a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  The rating criteria do not provide a disability rating in excess of 10 percent for the Veteran’s right thumb impairment when not manifesting in such limitation.  Thus, the Board concludes that the evidence of record does not support finding that the Veteran is entitled to a disability rating in excess of 10 percent for the right thumb disability in this case.

29. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, median nerve, left index finger is denied.

30. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, median nerve, right thumb is denied.

Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715).  Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity.  Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity.  Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity.  Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity.  Complete paralysis is characterized by: the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances.  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 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).

Regarding impairment of motor functions, the April 2018 VA peripheral nerves rating examination report shows no muscle strength deficits upon clinical testing. Regarding trophic changes, the report shows that “No,” there were -not- any “trophic changes.” Regarding sensory disturbance, the examination report shows that there was “Decreased” (but -not- “Absent”) sensation for light touch in the bilateral hands/fingers, but sensation was otherwise normal for the bilateral upper extremities.  The VA examiner’s clinical assessment revealed that the Veteran experienced “Paresthesias and/or dysesthesias” and “Numbness” in both upper extremities, and these impairments were “Mild” in the left upper extremity, while they were “Moderate” in the right upper extremity. Regarding loss of reflexes, the April 2018 VA peripheral nerves rating examination report shows “All normal” reflex testing. Regarding pain, the April 2018 VA peripheral nerves rating examination report shows that the Veteran reported “Intermittent pain (usually dull),” and that such pain was “Mild” for the left upper extremity, and “Moderate” for the right upper extremity.  The Veteran did not report constant pain. Regarding muscle atrophy, the report shows that “No,” there was -not- any “muscle atrophy.” Regarding complete paralysis, the report shows that the median nerve of neither the left nor right upper extremity manifested complete paralysis.  The characteristics of complete paralysis listed in the above-discussed rating criteria are not otherwise shown for either upper extremity.  Rather, the VA examiner specifically determined that there was “Incomplete paralysis” of “Mild” degree for the left upper extremity, and “Incomplete paralysis” of “Mild” degree for the right lower extremity. The report documents that the Veteran reported that she is right hand dominant, and that she experiences “numbness of the right thumb.”  The VA examiner determined that “No,” the bilateral upper extremity peripheral nerve impairment does -not- “impact … her ability to work.”

Based on the above, the Board finds that the disabilities are primarily manifested by sensory disturbance (of mild degree for the left, and moderate degree for the right) and pain (intermittent, of mild degree for the left, and moderate degree for the right) in both upper extremities.  The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis.  The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis, consistent with the April 2018 VA examiner’s own medical characterization of the impairments.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected.  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity median nerve, and the preponderance of the evidence is against her claim for a rating in excess of 10 percent her peripheral neuropathy of the right upper extremity median nerve.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

31. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, left knee is denied.

32. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome, right knee is denied.

The Veteran’s right knee patellofemoral pain syndrome and her left knee patellofemoral pain syndrome have each been separately rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg.  The Board notes that 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint.

Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees.  A 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  

The April 2018 VA knee examination report of record shows that the VA examiner documented and considered the Veteran’s report of symptoms in both knees.  The VA examiner diagnosed bilateral patellofemoral pain syndrome.  The VA examiner documented that the Veteran reported pain on the medial and lateral aspect of both knees with stiffness, clicking, popping, and grinding.  The right knee is worse than the left because sometimes it will swell.  The Veteran also described that flare ups of the right knee can be described as aching, tight, soreness pain, 7/10 pain level.  The right knee sometimes will swell and give out and flare ups of the left knee can be described as aching, tight, soreness pain, 5/10 pain level.  The Veteran described functional loss in that it is hard to run or do fast walking or go up and down stairs.

On clinical examination, the VA examiner found that ranges of motion for both legs were all normal, and there was no pain noted on this examination.  There was no change upon observed repetitive use of the knees.  The VA examiner did note the presence of popping with range of motion of the joints.  The VA examiner accepted the Veteran’s description of impairment during unobserved flare-ups, finding that the “examination is medically consistent with the Veteran’s statements describing functional loss during flare up.”  The VA examiner found, based upon the Veteran’s own account, that both knees were impaired during flare-ups due to pain and Lack of endurance.  Accounting for these factors, and based upon the Veteran’s own account, the VA examiner determined that functional loss could be described in terms of range of motion.  The VA examiner estimated that the Veteran’s functional impairment during flare-ups was represented by limitation of flexion to 135 degrees in both knees, with extension still fully normal to the 0 degree position in both knees.

Clinical testing revealed no lateral instability, and no other manner of joint instability in either knee.  The VA examiner also noted that there was no history of recurrent subluxation and no history of recurrent effusion in either knee.  The VA examiner indicated that there was no impact upon her ability to perform any type of occupational task. Notably, the VA examiner noted that there was objective evidence of pain on passive range of motion testing of the left knee.  

The Board finds that an increased evaluation is not for assigment. The VA examiner provided an estimate of limitation of motion reflecting functional impairment of the left knee during flare-ups; the VA examiner’s estimate specifically accounted for pain and fully accepted the Veteran’s own description of impairments, and therefore the Board finds that the estimated range of motion impairment during painful flare-ups accounts for the impairment associated with pain in the left knee. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss as discussed above.  However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.  Again, significantly, the April 2018 VA examination report shows that the estimated limitation of flexion during flare-ups, informed by acceptance of the Veteran’s own account of her impairment experience, was to 135 degrees in both knees.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

Diagnostic Code 5256 pertains to ankylosis of the knee and does not apply in this case.  The April 2018 VA examination report specifically confirms that neither of the Veteran’s knees is ankylosed, and no evidence or contention of record suggests otherwise.  Thus, a higher or separate evaluation is not warranted.

Diagnostic Code 5257 pertains to other impairment of the knee and addresses lateral instability and recurrent subluxation.  The April 2018 VA examination report specifically confirms that clinical testing showed no instability of either knee, and that there is no history of recurrent subluxation.  The Board recognizes that the Veteran reported to the April 2018 VA examiner that the right knee sometimes will swell and give out.  All joint stability tests, however, were normal and there is no medical evidence of patellar subluxation or lateral instability of either knee.  Indeed, a layperson’s perception that a symptom experienced is of orthopedic origin does not necessarily establish that such is the case, nor is it certain that a layperson’s wording used to describe the functional impairment accurately depicts the functional impairment.  As the medical evidence and examination show that the Veteran does not exhibit actual instability or subluxation, the Board will not make an independent medical judgment and conclude otherwise.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Also, because of the absence of findings of instability on examination, the Veteran’s knee disabilities do not manifest in at least slight recurrent subluxation or lateral instability in either knee.  Indeed, while the Veteran may be competent to report on symptoms and her perception of the degree of such symptoms, ultimately the opinion of the examiner in regard to the type and severity of functional impairment associated with a disability holds more probative weight because of the examiner’s expertise in evaluating knee disorders.  Cf. English v. Wilkie, 30 Vet. App. 171 (2018). Diagnostic Code 5257 does not provide for separate or higher evaluations in this case.

Diagnostic Code 5258 pertains to dislocation of semilunar cartilage (meniscus) of the knee and Diagnostic Code 5259 pertains to symptomatic removal of semilunar cartilage (meniscus) of the knee.  The April 2018 VA examination report specifically confirms that neither of the Veteran’s knees has had any meniscus / semilunar cartilage condition, and no evidence or contention of record suggests otherwise.  Diagnostic Code 5258 thus does not provide for separate or higher evaluations.

Diagnostic Code 5261 pertains to limitation of extension of the knee. The April 2018 VA examination report noted that neither of the Veteran’s knees has had any limitation of extension (extension is always reported as full to the 0 degree position), including in the VA examiner’s description of flare-up impairments based upon the Veteran’s own account of impairment, and no evidence or contention of record suggests otherwise.  Thus, higher or separate evaluations are not for assignment.

Diagnostic Code 5262 pertains to impairment of the tibia and fibula.  The April 2018 VA examination report indicates that the Veteran does not have an impairment of the tibia or fibula.  Diagnostic Code 5263 pertains to genu recurvatum.  The April 2018 VA examination report shows that the Veteran does not have genu recurvatum, and no evidence or contention of record suggests otherwise.  Thus, higher or separate evaluations are not for assignment.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee patellofemoral pain syndrome, and the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left knee patellofemoral pain syndrome.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

33. Entitlement to a rating in excess of 10 percent for lateral collateral ligament sprain, left ankle is denied.

34. Entitlement to a rating in excess of 10 percent for lateral collateral ligament sprain, right ankle is denied.

The Veteran’s right and left ankle lateral collateral ligament strains are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle.  Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle.  A maximum 20 percent rating is warranted for marked limited motion of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271 (as in effect prior to February 7, 2021).  According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension.”  See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”.  See www.merriam-webster.com/dictionary/marked.

The April 2018 VA ankle examination report of record shows that the VA examiner documented and considered the Veteran’s report of symptoms in both ankles, including that she reports having intermittent pain, popping and stiffness in both ankle joints.  The report documents the Veteran’s report of experiencing laxity, pain, swelling (in the left ankle), lack of endurance, decrease in ranges of motion.  The VA examiner diagnosed bilateral ankle lateral collateral ligament sprain, currently quiescent.  On clinical examination, all ranges of motion were fully normal with no pain noted on examination.  The VA examiner recorded that the Veteran described that flare ups of the right ankle can be described as aching, twitching type pain, 6/10 pain level, especially when she rolls her ankle.  The flare ups of the left ankle can be described as aching twitching type pain, 8/10 pain level, especially when she rolls her ankle.  Sometimes the left ankle will swell. The VA examiner also recorded that the Veteran did not report having any functional loss or functional impairment of the ankles.

The VA examiner conducted clinical testing of the ankles, including with some repetitive use, and further discussed impairment in unobserved circumstances of further repetitive use and during flare-ups.  The VA examiner noted no ankle joint laxity on clinical inspection, but did note popping with range of motion of the joints. The greatest degree of impairment was reflected in the VA examiner’s estimates of the Veteran’s impairment during unobserved flare-ups.  The VA examiner accepted that the Veteran’s statements describing functional loss during flare up were medically consistent with the examination, and based upon the Veteran’s descriptions the VA examiner estimated that pain and lack of endurance during flare-ups reduce both ankles to 15 degrees dorsiflexion, with fully normal 45 degrees of plantar flexion.  The VA examiner opined that the ankle disabilities did not impact her ability to perform any type of occupational task.  The VA examiner noted that there was no evidence of pain on passive motion and not evidence of pain on non-weight bearing for either ankle, in addition to the notation of no evidence of pain during the clinical range of motion testing.

The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to the factors documented in the April 2018 VA examination report, discussed above.  However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion.  The April 2018 VA examiner expressly considered and accepted the Veteran’s own account of her experienced symptoms and impairment when documenting that flare-up impairment limited dorsiflexion to 15 degrees in both ankles, with no functional impairment meeting the criteria for a higher rating for either ankle.

The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating.  However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code as there is no ankylosis of the ankle or subastagalar or tarsal joint, malunion of the os cal is or astragalus, astragalectomy, or impairment of the tibia and fibular with residual ankle disability.  See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274, 5262.

In conclusion, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for service-connected disability of the right ankle, and the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for service-connected disability of the left ankle.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

35. Entitlement to a rating in excess of 10 percent for tinnitus is denied.

The Veteran’s tinnitus is currently rated 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 9905 for tinnitus.

Under 38 C.F.R. § 4.87, Code 6260, there is no provision for assignment of a rating in excess of 10 percent for tinnitus, including no rating allowing separate 10 percent ratings for tinnitus of each ear.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit concluded that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Code 6260, limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  38 C.F.R. § 4.87, Code 6260.  As there is no legal basis upon which to award an increase, to include separate schedular ratings for tinnitus in each ear, the Veteran’s appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Aside from the matters addressed in this Board decision, neither the Veteran nor her attorney raised any other issues, nor have any other issues been reasonably raised by the record in connection with the tinnitus increased rating claim.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

36. Entitlement to a compensable rating for hallux valgus of the left foot is denied.

37. Entitlement to a compensable rating for hallux valgus of the right foot is denied.

The Veteran’s right and left foot hallux valgus disabilities are each separately rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus.  Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for severe unilateral hallux valgus, if equivalent to amputation of great toe.  A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Board finds that the preponderance of the evidence is against a compensable rating for right foot hallux valgus, and the preponderance of the evidence is against a compensable rating for left foot hallux valgus.

The April 2018 VA foot examination report of record shows that the VA examiner documented and considered the Veteran’s report of symptoms in both feet.  The VA examiner diagnosed “Bilateral mild hallux valgus, incidental finding, asymptomatic.”  The Veteran reported no pain, no flare-ups, and no functional loss.  The VA examiner found no occupational impairment.  On clinical examination, the VA examiner found no symptoms associated with the hallux valgus in either foot, and noted that there was no history of associated surgery.  The VA examiner described: “There is presence of bilateral hallux valgus without tenderness or painful motion.”

In light of the evidence discussed above, considering the Veteran’s lay reports and the pertinent medical findings, the evidence does not show hallux valgus impairment of either foot resulting in symptoms more nearly approximating unilateral hallux valgus equivalent to amputation of great toe or unilateral hallux valgus operated with resection of metatarsal head.

The Board has not considered the other Diagnostic Codes pertaining to the foot.  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the conditions listed in the rating schedule.  Id. 

Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code.  Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.

In conclusion, the Board finds that the preponderance of the evidence is against entitlement to a compensable rating for right foot hallux valgus, and the preponderance of the evidence is against entitlement to a compensable rating for left foot hallux valgus.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

38. Entitlement to an initial rating of 10 percent (increased from noncompensable), but no higher, for recurrent urinary tract infection is granted.

The Veteran’s recurrent urinary tract infection disability is currently rated noncompensably disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7516, as analogous to fistula of the bladder.

An evaluation of 100 percent is provided under 38 C.F.R. § 4.115b, Diagnostic Code 7516, for disability associated with postoperative suprapubic cystotomy.  Otherwise, Diagnostic Code 7516 directs that disability be rated as voiding dysfunction or urinary tract infection, whichever is predominant.

Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding.  Continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating.  That which requires the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a 40 percent rating.  That which requires the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating.  38 C.F.R. § 4.115a.

Urinary tract infection featuring poor renal function is to be rated as renal dysfunction.  With long-term drug therapy, 1-2 hospitalizations per year, and/or requiring intermittent intensive management warrants a 10 percent rating.  Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating.  Id.

Neither the evidence of record nor the contentions presented by the Veteran and her representative suggest that she has undergone suprapubic cystotomy.  Accordingly, the criteria for a 100 percent provided by Diagnostic Code 7516 are not met.

38 C.F.R. § 4.115a provides additional rating criteria for compensation based upon renal dysfunction, urinary frequency, or obstructed voiding.  As discussed below, the Veteran’s disability is not indicated in this case to manifest in impairments of these types, and therefore those rating criteria are not for application in this case.

In a December 2020 brief, the Veteran’s representative presents an argument that directs attention to the fact that the April 2018 VA Urinary Tract rating examination report “noted that the Veteran’s recurrent UTI condition required intermittent intensive management requiring antibiotic treatment approximately once every two months over the past year.”  The representative then directs attention to the Veteran’s December 2020 affidavit in which she states: “Due to my UTIs, I go to the doctors about every other month… and my doctor typically prescribes me antibiotics every two months…  I will take the medication that is prescribed to me until my symptoms go away, but I continue to have irritation.”  The Veteran’s representative writes: “As the medical evidence and the declaration provided by the Veteran properly shows that the Veteran[’]s claimed UTI condition requires intermittent intensive management, please grant [the Veteran] entitlement to an increased rating for her recurrent UTI condition to 10-percent from June 22, 2018.”

The April 2018 VA Urinary Tract rating examination report shows a diagnosis of recurrent urinary tract infections, currently quiescent.  The report documents that the Veteran reported “having recurrent urinary tract infections approximately once every two months.”  The examiner found that the Veteran did not have a voiding dysfunction, and there was no indication of increased urinary frequency nor symptoms of obstructed voiding. The report notes that there was no renal dysfunction due to condition or functional impact upon the bladder or urethra that impacts her ability to work. The examination report describes that the Veteran has “a history of recurrent symptomatic bladder or urethral infections” featuring “Intermittent intensive management” in that “[s]he has required intermittent antibiotic treatment approximately once every two months over the past year.”  Significantly, the VA examiner indicated that the Veteran’s disability did not involve long-term drug therapy, nor hospitalization, drainage, continuous intensive 

The Board finds that an increased 10 percent rating is warranted for the Veteran’s recurrent urinary tract infections. The examination report describes that the Veteran has a history of recurrent symptomatic bladder or urethral infections featuring intermittent intensive management in that she has required intermittent antibiotic treatment approximately once every two months over the past year.

The April 2018 VA examination report makes clear that the Veteran’s urinary tract infections do not require treatment involving drainage, nor frequent hospitalization, nor continuous intensive management.  There is no significantly contrary evidence or indication of record on these points, and thus the Board finds the findings of the April 2018 VA examiner to be persuasive.  These findings make clear that the criteria for a 30 percent rating for urinary tract infection under 38 C.F.R. § 4.115a have not been met. None of the criteria for any rating in excess of 10 percent for the Veteran’s service-connected genitourinary disorder have been met in this case.  No rating in excess of 10 percent is warranted; to this extent the appeal must be denied.

In summary, the Board finds that a grant of an increased 10 percent rating throughout the rating period is warranted for the Veteran’s service-connected recurrent urinary tract infections.  The Board finds that the preponderance of the evidence is against entitlement to a further increased rating.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

39. Entitlement to a compensable rating for left inguinal muscle strain is denied.

40. Entitlement to a compensable rating for right inguinal muscle strain is denied.

The Veteran’s right and left inguinal muscle disabilities are each separately rated under 38 C.F.R. § 4.73, Diagnostic Code 5316.  Diagnostic Code 5316 applies to injury to Muscle Group XVI (Function: Flexion of hip (1, 2, 3).  Pelvic girdle group 1: (1) Psoas; (2) iliacus; (3) pectineus).  Under Diagnostic Code 5316: slight disability of Muscle Group XVI warrants a 0 percent rating, moderate disability warrants a 10 percent rating, moderately severe disability warrants a 30 percent rating, and severe disability warrants a 40 percent rating.  

38 C.F.R. § 4.56 provides factors to be considered in classifying a muscle injury as slight, moderate, moderately severe, or severe.

Under 38 C.F.R. § 4.56, muscle disabilities are evaluated as follows: (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating purposes, 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.

Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows:

(1) Slight disability of muscles --(i) Type of injury.  Simple wound of muscle without debridement or infection.  (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty.  Healing with good functional results.  No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section.  (iii) Objective findings.  Minimal scar.  No evidence of fascial defect, atrophy, or impaired tonus.  No impairment of function or metallic fragments retained in muscle tissue.

(2) Moderate disability of muscles --(i) Type of injury.  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.  (ii) History and complaint.  Service department record or other evidence of in-service treatment for the wound.  Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  (iii) Objective findings.  Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue.  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.

(3) Moderately severe disability of muscles --(i) Type of injury.  Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  (ii) History and complaint.  Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound.  Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements.  (iii) Objective findings.  Entrance and (if present) exit scars indicating track of missile through one or more muscle groups.  Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.

(4) Severe disability of muscles --(i) Type of injury.  Through and through or deep penetrating wound due to high- velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  (ii) History and complaint.  Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound.  Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.  (iii) Objective findings.  Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track.  Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area.  Muscles swell and harden abnormally in contraction.  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function.  If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.  (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.  (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.  (D) Visible or measurable atrophy.  (E) Adaptive contraction of an opposing group of muscles.  (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle.  (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d).

The Board finds that the preponderance of the evidence is against a compensable rating for right inguinal muscle strain, and the preponderance of the evidence is against a compensable rating for left inguinal muscle strain.

The April 2018 VA Muscle Injuries VA examination report shows that the VA examiner documented and considered the Veteran’s report of inguinal muscle symptoms.  The Veteran described that she “continues to have intermittent flareups occurring approximately once a month; each time this can last up to four days with pain severity of 6/10.  Often the pain is sharp and spasm-like.  She has not been evaluated or treated for this condition.”  Significantly, the VA examiner noted that the Veteran “denies known history of hernia and denies any traumatic injury to the area.”  The VA examiner diagnosed bilateral inguinal muscle strain, currently quiescent.  The VA examiner’s inspection identified the pertinent injury as specific to “Pelvic girdle and thigh ….  [Muscle] Group XVI.”  In the section of the report inventorying “Cardinal signs and symptoms of muscle disability,” the VA examiner noted “Fatigue-pain” of “Occasional” frequency for Muscle Group XVI, bilaterally.  Muscle strength testing revealed no pertinent abnormalities apart from reduced muscle strength for hip flexion, bilaterally, noting “4/5” strength.  The VA examiner clarified that the noted 4/5 muscle strength on hip flexion with a cardinal sign of occasional bilateral fatigue-pain were subjective symptoms reported by the claimant; hence the current status of the muscle strain is quiescent.  The VA examiner found that there was not any impact upon her ability to work, such as resulting in inability to keep up with work requirements due to muscle injuries.

No other evidence of record indicates any identifiably greater level of muscle impairment associated with the service-connected inguinal muscle strains than that detailed in the April 2018 VA examination report.  The April 2018 VA examination report presents a competent medical professional’s assessment, based upon the Veteran’s description of symptoms and clinical examination, and the evidence shows that the Veteran’s inguinal strain impairments do not involve the features of injury, history / complaint, or objective findings characterizing a “moderate” disability of muscles with reference to the provisions of 38 C.F.R. § 4.56.  The evidence shows that the Veteran’s inguinal strain impairments do not exceed the features of injury, history / complaint, or objective findings characterizing a “slight” disability of muscles with reference to the provisions of 38 C.F.R. § 4.56.  Accordingly, the Board finds that there has been no more than slight disability associated with the service-connected injuries to Muscle Group XVI, bilaterally.  Slight disability of Muscle Group XVI warrants a 0 percent rating under the provisions of Diagnostic Code 5316, discussed above.  Accordingly, no compensable rating is warranted for the service-connected inguinal muscle injuries.  To this extent, the appeal is denied.

Here, the Veteran’s inguinal muscle disabilities are shown by the evidence to be specific to Muscle Group XVI, which is to be rated under Diagnostic Code 5316, and the evidence of record does not reflect that the Veteran has any other service-connected impairment of another Muscle Group associated with the inguinal muscle strains that would warrant a separate rating under a different Diagnostic Code.

In conclusion, the Board finds that the preponderance of the evidence is against entitlement to a compensable rating for right inguinal muscle strain, and the preponderance of the evidence is against entitlement to a compensable rating for left inguinal muscle strain.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

41. Entitlement to a compensable rating for residual scar, left index finger, due to laceration is denied.

The Veteran’s left index finger scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018.  However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments.

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 be rated under an appropriate Diagnostic Code.

The Board has considered the other Diagnostic Codes pertaining to scars.  However, the Veteran’s left index finger scar is not of the head, face, or neck; is not deep and nonlinear; and is not associated with underlying soft tissue damage.  Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater.  Moreover, the Veteran’s left index finger scar is not unstable or painful.  Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable.  The April 2018 VA scar rating examination report specifically shows that the scar is linear and “1.5 cm” in length, that “No,” it is -not- “unstable, with frequent loss of covering of skin over the scar, and that “No,” it is not painful.

The Board also finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s left index finger scar under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04.  An April 2018 VA scar rating examination report shows that the Veteran is diagnosed with “Left index finger scar due to laceration,” and that the Veteran “denies having pain or other symptoms associated with the scar.”

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms, and her reports are credible.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, she does not assert, and medical records do not show, that the Veteran’s left index finger scar is manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04.  In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for the left index finger scar.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

42. Entitlement to a 10 percent rating based upon multiple, noncompensable service-connected disabilities, is denied.

Whenever a veteran is suffering from two or more separate permanent service connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating.  38 C.F.R. § 3.324.

The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities.  As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot.  See Butts v. Brown, 5 Vet. App. 532, 541 (1993).

In this case, the Veteran is service-connected for a number of disabilities based on receipt of her March 2018 claim, all of which are awards effective from June 22, 2018, the earliest possible date based upon the date of her separation from active duty service.  The March 2018 claim is the earliest claim that gives rise to the current appeal period.  The Veteran has already established numerous compensable disability ratings for her service-connected disabilities.  Therefore, there is no legal entitlement to a 10 percent rating under 38 C.F.R. § 3.324, and the claim is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).

Increased Ratings Conclusion

As discussed above, the preponderance of the evidence is against awarding any additional or further increased ratings this case.  The Board has considered whether there is any other basis for granting increased and/or additional ratings but has found none.  As the preponderance of the evidence is against assignment of any further increased and/or additional ratings in this case, the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record in connection with the disabilities for consideration in this appeal (beyond what is addressed in this decision, such as the Board’s remand of the matter of entitlement to TDIU).  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Service Connection

43. Entitlement to service connection for a disability of the left hand fourth digit associated with laceration or numbness is denied.

44. Entitlement to service connection for a disability of left wrist pain / tendonitis is denied.

The Veteran has contended that she suffers from residuals of a laceration to the 4th digit of the left hand, including numbness, due to her military service.  The Veteran also contends that she suffers from a left wrist disability / tendonitis due to her military service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.  The Board concludes that the Veteran does not have a current diagnosis or disability associated with any 4th digit of left-hand laceration/numbness, and has not had one at any time during the pendency of the claim.  The Board concludes that the Veteran does not have a current diagnosis or disability associated with any left wrist pain/tendonitis, and has not had one at any time during the pendency of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

With regard to the 4th digit of the left hand, an April 2018 VA Peripheral Nerves compensation examination report specifically shows that the Veteran reported that she cut her left index finger with a knife back in 2016.  Of course, the index finger is different than the 4th digit of a hand, and the Veteran’s nerve and scar impairments of the left index finger have been established as service-connected disabilities.  With regard to the separate matter of entitlement to service connection for a disability of the 4th digit of the left hand, the April 2018 VA Peripheral Nerves VA examination report shows that the Veteran denies having any numbness affecting her left fourth digit, and no disability involving the left fourth digit was found by the VA examiner.  Significantly, an April 2018 VA Scars examination report shows that the Veteran denies having any left fourth digit laceration.  No disability of the left fourth digit was found in the April 2018 VA Scars examination report, VA Peripheral Nerves examination report, and VA Hand and Finger examination report.  No pertinent disability of the 4th digit of the left hand is otherwise shown in the evidence of record from the pendency of the claim in this case.  The April 2018 VA examination findings are competent evidence indicating that the Veteran has no disability of the 4th digit of the left hand, and the Board finds no significantly contrary competent evidence of record.

With regard to the left wrist, an April 2018 VA Wrist examination report focused upon the Veteran’s claimed condition of left wrist tendonitis, along with right wrist tendonitis.  The Veteran was diagnosed with tendonitis in the right wrist, and that diagnosis is now established to be a service-connected disability.  Significantly, however, the April 2018 VA Wrist examination report noted there was no left wrist tendonitis or other diagnosis based on a lack of pathology.  The Veteran reported experiencing left wrist pain during flare-ups, and the VA examiner accepted this testimony with the finding that “[t]he examination is medically consistent with the Veteran’s statements describing functional loss during flare up.”  Significantly, however, the VA examiner documented that the Veteran’s described flare-ups do not cause pain, weakness, fatigability or incoordination significantly limiting functional ability with flare-ups.  The VA examiner also documented that the Veteran’s description of left wrist function following repeated use did not indicate pain, weakness, fatigability or incoordination significantly limiting functional ability with repeated use over a period of time.  The VA examiner found that that the reported left wrist flare up is not clinically significant to warrant a diagnosis as the left wrist examination was within normal limits.  This is competent evidence indicating that the Veteran has no left wrist disability, and the Board finds no significantly contrary competent evidence of record.

The Board finds that the preponderance of the evidence is against a finding that the Veteran has a current disability of the left hand 4th digit or the left wrist, to include any residuals of in-service injury.  In the absence of proof of a present disability, there is no valid claim of service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Here, the Board finds that the evidence also does not show that her left hand 4th digit or her left wrist has had an impairment resulting in a functional impairment that has limited her earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).  The April 2018 VA Peripheral Nerves VA examination report shows that the Veteran denies having any numbness affecting her left fourth digit.  The April 2018 VA Scars examination report shows that the Veteran denies having any left fourth digit laceration.  With regard to the left wrist, in an April 2018 VA Wrist examination report, the VA examiner documented that the Veteran’s described flare-ups do not cause pain, weakness, fatigability or incoordination significantly limiting functional ability with flare-ups.  The VA examiner also documented that the Veteran’s description of left wrist function following repeated use did not indicate pain, weakness, fatigability or incoordination significantly limiting functional ability with repeated use over a period of time.  Consequently, the Board finds that the Veteran has not experienced a current disability of her left-hand 4th digit or her left wrist for VA purposes.

Although the Veteran may believe that she has a disability of her left hand 4th digit or her left wrist causally related to her military service, she is not competent to provide a diagnosis in this case and has not provide testimony of functional impairment of either significant enough to reduce earning capacity.  The issue of diagnosis is medically complex, and it requires specialized medical education.  Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a medical determination.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011).  While the Veteran is competent to report aspects of functional impairment she may experience from a disability, the Board finds that the Veteran has not presented a showing of functional impairment associated with the claimed disabilities of the left hand fourth digit or the left wrist in any evidence or testimony in this case, especially in light of the April 2018 VA examination report evidence showing that she denied symptoms of the left hand fourth digit, and that her described symptoms of the left wrist did not result in functional impairment.  Considering all of the above, the Board finds that the evidence and testimony in this case do not show functional impairment associated with claimed disabilities of the left hand fourth digit or the left wrist during the pendency of the claim on appeal.

As the evidence is not at least in equipoise regarding the initial element of service connection (a present disability), the Veteran’s claims of entitlement to service connection for disabilities of the left hand fourth digit or the left wrist must be denied.  See 38 U.S.C. § 5107(a); 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167.

REASONS FOR REMAND

1. This issue of entitlement to a rating in excess of 10 percent for limitation of extension associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

2. This issue of entitlement to a compensable rating for limitation of flexion associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

3. This issue of entitlement to a compensable rating for impairment of thigh associated with trochanteric pain syndrome, including trochanteric bursitis, of the right hip is remanded.

4. This issue of entitlement to a rating in excess of 10 percent for limitation of extension associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

5. This issue of entitlement to a compensable rating for limitation of flexion associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

6. This issue of entitlement to a compensable rating for impairment of thigh associated with trochanteric pain syndrome, including trochanteric bursitis, of the left hip is remanded.

The Veteran seeks increased ratings for several aspects of disability impairment of both hips.

To provide adequate consideration of the Veteran’s claim, the Board finds that a new VA examination is warranted to provide the updated data and findings necessary to support an informed appellate review of these rating issues on appeal.  VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  The Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s hip disabilities.

The April 2018 VA examination report regarding the Veteran’s hip/thigh disabilities shows that clinical inspection and the Veteran’s description of functional impairment during unobserved flare-ups were considered by the VA examiner in providing several sets of measurements and estimates to characterize the extent of the Veteran’s hip/thigh disability impairments.  Pertinently, the VA examiner was repeatedly asked if it was the case that “adduction [is] limited such that the Veteran cannot cross legs?”.  In every context, including both with regard to clinical observation and with regard to characterizing the Veteran’s own account of the severity of impairment during flare-ups, the VA examiner indicated that “No,” the Veteran’s impairments do -not- include any clinically observed or patient-reported indication that the Veteran “cannot cross legs” with regard to impairment of either hip.  The Board notes that applicable rating criteria for rating disabilities of the hips recognize “Limitation of adduction of [thighs], cannot cross legs” as a compensable impairment significant to rating determinations concerning the hips and thighs.

Significantly, the Veteran’s December 2020 written testimony asserts a notable worsening in the Veteran’s service-connected hip / thigh impairment.  The Veteran now reports: “I am also unable to cross my legs.  I used to work out in a gym and run, but because of my hips any impact is painful, so I had to stop working out altogether.”

The Veteran indicated that her hip/thigh disabilities did not prevent adduction of her hips for crossing her legs at the time of the VA examination in April 2018, but has now subsequently indicated a worsening severity of impairment with specifically a new inability to cross her legs.  The April 2018 VA examiner’s findings characterize a level of severity of hip/thigh disability that is significantly lesser than the impairment the Veteran has indicate has emerged since that time.  Accordingly, the Board finds that a new VA examination is necessary to inform a rating determination with regard to the Veteran’s current level of disability.

7. The issue of entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease with small focal central disc herniation at L5-S1 is remanded.

To provide adequate consideration of the Veteran’s claim, the Board finds that a new VA examination is warranted to provide the updated data and findings necessary to support an informed appellate review of these rating issues on appeal.  VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  The Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s back disability.

The April 2018 VA examination report notes that the Veteran’s back disability results in impairment featuring painful limitation of motion, and the Veteran’s pain was described by the VA examiner as responsible for functional impairment, including additional functional impairment during flare-ups.  The VA examiner provided an estimate of the Veteran’s limitation of motion during painful flare-ups, and this information is essential to informing a rating determination in this case.  However, the Veteran has subsequently repeatedly reported that her back pain has worsened.  VA treatment reports dated in August 2018, April 2019, and August 2019 document “[c]omplaints of increasing back pain.”

Because the Veteran’s back pain has been clearly identified as a key causal factor in her functional impairment of the back, appellate review of the back disability rating must rely significantly upon the VA examiner’s estimation of the extent of functional impairment of range of motion corresponds to the Veteran’s description of her flare-ups.  However, the April 2018 VA examiner’s estimates are based upon a level of back pain that was lesser than the level that later emerged as the Veteran has repeatedly described subsequent worsening of her back pain.  Accordingly, the Board finds that a new VA examination is necessary to inform a rating determination with regard to the Veteran’s current level of disability.

8. The issue of entitlement to a further increased rating for TMJD, currently rated 40 percent disabling (as a result of the Board’s determination in this decision), is remanded.

As discussed above, the Board has determined that the evidence of record clearly shows that the Veteran meets the rating criteria for an increased rating.  However, the Veteran’s entitlement to a further increased rating remains for consideration in this appeal, and the Board finds that the evidence of record is inadequate to inform final appellate review at this time.

The April 2018 VA examination report (based upon a March 2018 examination) regarding the Veteran’s TMJD makes clear that the Veteran’s impairment significantly features pain, and pain causes limitation of functional ability during unobserved episodes following repeated use over a period of time.  The Veteran furthermore described “very painful” episodes of “flare-ups.”  However, when asked to characterize the extent of impairment the Veteran may experience during her described flare-ups, the VA examiner responded that she was “Unable to say without mere speculation,” and the reason for this inability was merely that “The patient did not experience a flare up during the exam.”

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion regarding functional loss.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans.  VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations.  If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion.  It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner.

The Board finds that a new examination is warranted to support adequately informed appellate review and to comply with the decision in Sharp.

9. The issue of entitlement to a TDIU is remanded.

A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

The Veteran’s representative has stated that the Veteran asserts entitlement to TDIU based upon each and all of her service-connected disabilities as part and parcel of her increased rating claims on appeal.  For instance, in a May 2020 letter, the Veteran’s representative stated: “The Veteran’s TDIU claim is part and parcel to her entitlement to an increased evaluation for her service-connected conditions currently pending in the March 4, 2020 and March 30, 2020 Substantive Appeals.”

The Board briefly observes that the Board’s grant of ratings in this decision will result in a combined 100 percent rating, and the Board also observes that the evidence of record suggests that the Veteran is actually employed.  However, the Board is compelled to remand some of the increased rating issues on appeal; the rating period associated with pending increased rating claims remains open and ongoing, and additionally there remain potential considerations with regard to potential entitlement to a TDIU on the basis of an individual disability.

The pending development and adjudication of the remanded issues could impact a decision on the issue of entitlement to a TDIU.  Accordingly, the issues are inextricably intertwined.  A remand of the issue of entitlement to a TDIU is required.  The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Thus, the Board must defer final adjudication of the matter of entitlement to TDIU until the development pending on remand has been completed.  A remand of the matter of entitlement to a TDIU is required.

The Board notes that it is remanding the entire matter of entitlement to a TDIU, on any basis, as a single matter at this time.  While the TDIU matter has been raised as part and parcel of the increased rating issues on appeal, the Board’s decisions regarding increased rating issues in this decision have not resolved or closed the matter of entitlement to TDIU on any basis.

The matters are REMANDED for the following action:

1. Obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA and private treatment records.

2. After the record is determined to be complete, schedule a VA examination to ascertain the current severity of the Veteran’s service-connected bilateral hip/thigh disabilities.  The Veteran’s entire record should be reviewed by the examiner in connection with the examination.  The examiner must include a rationale with all opinions.  The examiner is asked to specifically discuss, as necessary, the Veteran’s December 2020 testimony indicating that she is unable to cross her legs due to her service-connected hip/thigh disabilities, and explain whether the Veteran is experiencing limitation of adduction of either thigh rendering the Veteran unable to cross her legs.

The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed.

3. After the record is determined to be complete, schedule a VA examination to ascertain the current severity of the Veteran’s service-connected back / spine disability.  The Veteran’s entire record should be reviewed by the examiner in connection with the examination.  The examiner must include a rationale with all opinions.  The examiner is asked to specifically discuss, as necessary, the functional impairment resulting from the Veteran’s documented reports of worsening pain, including during flare-ups.

The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed.

4. After the record is determined to be complete, schedule a VA examination to ascertain the current severity of the Veteran’s service connected TMJD.  The Veteran’s entire record should be reviewed by the examiner in connection with the examination.  The examiner must include a rationale with all opinions.

The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  The Board is not permitted to accept a rationale that the examiner is unable to offer an opinion without resort to speculation based on an aversion to offering an opinion on issues not directly observed.

5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal including the inextricably intertwined issue of entitlement to a TDIU.  If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

K. MILLIKAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Barone, 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.