Citation Nr: 21012920
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 20-04 967
DATE: March 8, 2021

ORDER

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for type II diabetes mellitus is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the previously denied claim of entitlement to service connection and secondary service connection for kidney disease is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the previously denied claim of entitlement to service connection and secondary service connection for coronary artery disease (claimed as a myocardial infarction) is reopened, and to this extent only, the appeal is granted.

Service connection for type II diabetes mellitus as secondary to service-connected hypertension is granted. 

Service connection for kidney disease (to include diabetic nephropathy) as secondary to service-connected disabilities (hypertension and type II diabetes mellitus) is granted.

Service connection for coronary artery disease of the heart as secondary to service-connected disabilities (hypertension and type II diabetes mellitus) is granted.

Service connection for LEFT eye diabetic retinopathy with traction retinal attachment with vitreous hemorrhage, RIGHT eye diabetic retinopathy with maculopathy, and BILATERAL eye hypertensive retinopathy, as secondary to service-connected disabilities (hypertension and type II diabetes mellitus), is granted.

Service connection for depressive and anxiety disorders with insomnia as secondary to pain and fatigue from service-connected disabilities (hypertension, type II diabetes mellitus, kidney disease, coronary artery disease, and a left wrist injury) is granted.

Service connection for chronic anemia as secondary to service-connected kidney disease is granted.

Service connection for gastroesophageal reflux disease (GERD) with gastritis as secondary to service-connected type II diabetes mellitus is granted.

Service connection for a headache disorder (on a direct basis) is granted.

Service connection for osteomyelitis (musculoskeletal pain) is denied.  

As the reduction in the disability rating from 10 percent to 0 percent for the Veteran’s service-connected two scars on the LEFT wrist was not proper, restoration of the 10 percent rating is granted, effective May 1, 2016.

An increased rating greater than 10 percent for two scars on the LEFT wrist is denied.

An increased rating greater than 10 percent for hypertension is denied.

An increased rating greater than 10 percent for an injury to the LEFT wrist joint with arthritis, status post multiple surgeries, is denied. 

A separate rating of 10 percent, but no greater, for muscle weakness to Muscle Groups VII and VIII, already part of the Veteran’s service-connected LEFT wrist joint disability, is granted. 

REMANDED

Service connection for a separate bilateral eye disorder (glaucoma, cataracts, and pseudophakia) as secondary to service-connected disabilities (hypertension, type II diabetes mellitus, and kidney disease), is remanded. 

Special monthly compensation (SMC) based on the need for regular aid and attendance under 38 U.S.C. § 1114(l) or by reason of being housebound under 38 U.S.C. § 1114(s) is remanded.

Additional SMC based on the need for regular aid and attendance for the Veteran’s spouse, R.M., under 38 U.S.C. § 1115 is remanded.

Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for an unidentified hospitalization over 21 days for an unidentified disorder, is remanded. 

Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following on an unidentified hospitalization for an unidentified disorder is remanded.

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is remanded. 

FINDINGS OF FACT

1. Earlier July 1993, September 1994, and July 2013 rating decisions denied service connection for type II diabetes mellitus.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period for each rating decision.

2. The evidence associated with the claims file subsequent to the July 2013 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for type II diabetes mellitus - on a secondary basis. 

3. An earlier July 2013 rating decision denied service connection and secondary service connection for kidney disease.  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

4. The evidence associated with the claims file subsequent to the July 2013 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for kidney disease - on a secondary basis. 

5. Earlier February 1987 and July 2014 rating decisions denied service connection for a heart disorder (described as a myocardial infarction).  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period for each rating decision.

6. The evidence associated with the claims file subsequent to the July 2014 rating decision is not cumulative and redundant of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a heart disorder / coronary artery disease.   

7. The Veteran has type II diabetes mellitus both proximately due to and aggravated by (worsened by) his service-connected hypertension.

8. The Veteran has kidney disease (to include diabetic nephropathy) both proximately due to and aggravated by (worsened by) his service-connected disabilities (hypertension and type II diabetes mellitus). 

9.  The Veteran has coronary artery disease of the heart proximately due to or the result of his service-connected disabilities (hypertension and type II diabetes mellitus). 

10. The Veteran has LEFT eye diabetic retinopathy with traction retinal attachment with vitreous hemorrhage, RIGHT eye diabetic retinopathy with maculopathy, and BILATERAL eye hypertensive retinopathy, all proximately due to or the result of his service-connected disabilities (hypertension and type II diabetes mellitus). 

11. The Veteran has depressive and anxiety disorders with insomnia both proximately due to and aggravated by (worsened by) pain and fatigue from his service-connected disabilities (hypertension, type II diabetes mellitus, kidney disease, coronary artery disease, and a left wrist injury). 

12. The Veteran has chronic anemia proximately due to or the result of his now service-connected kidney disease.

13. The Veteran has GERD with gastritis proximately due to or the result of his now service-connected type II diabetes mellitus. 

14. The Veteran has a headache disorder that began during his active military service from 1975 to 1981. 

15. The Veteran does not have a current osteomyelitis disability.  

16. The AOJ’s decision to reduce the Veteran’s service-connected two left wrist scars from 10 percent to 0 percent, effective May 1, 2016, was not proper.  As to the February 2016 final reduction, there was a due process error in that no notice letter apprising of the reduction was issued to the Veteran or his attorney. 

17. The Veteran has two service-connected post-surgical left wrist scars.  The two left wrist scars are not painful, not unstable with frequent loss of covering, and have no underlying soft tissue damage.  The total area of both left wrist scars was not greater than 39 square cm (6 square inches).  Neither scar causes any limitation of function or limitation of motion or nerve damage.  

18. The Veteran’s service-connected hypertension has a history of diastolic pressure predominantly 100 or more with the need for continuous medication for control; however, it has not been productive of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.

19. The Veteran’s service-connected arthritis of the LEFT wrist joint, status post surgeries, on his dominant left hand is productive of limitation of motion, pain, fatigue, decreased grip strength, and other factors of functional impairment.  However, this LEFT wrist disability is not productive of ankylosis.    

20. The Veteran has “moderate” muscle disability to Muscle Groups VII and VIII of the left wrist, manifesting in separate and distinct symptomatology from his joint injury of the left wrist with arthritis.  This “moderate” symptomatology includes muscle weakness, loss of power, fatigue, and pain.  

CONCLUSIONS OF LAW

1. New and material evidence sufficient to reopen the claim of service connection for type II diabetes mellitus has been received after the final July 2013 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 

2. New and material evidence sufficient to reopen the claim of secondary service connection for kidney disease has been received after the final July 2013 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 

3. New and material evidence sufficient to reopen the claim of service connection for coronary artery disease has been received after the final July 2014 rating decision.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 

4. The criteria have been met for secondary service connection for type II diabetes mellitus.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

5. The criteria have been met for secondary service connection for kidney disease (to include diabetic nephropathy).  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

6. The criteria have been met for secondary service connection for coronary artery disease of the heart.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

7. The criteria have been met for secondary service connection for LEFT eye diabetic retinopathy with traction retinal attachment with vitreous hemorrhage, RIGHT eye diabetic retinopathy with maculopathy, and BILATERAL eye hypertensive retinopathy.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

8. The criteria have been met for secondary service connection for depressive and anxiety disorders with insomnia.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

9. The criteria have been met for secondary service connection for chronic anemia.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

10. The criteria have been met for secondary service connection for GERD with gastritis.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a)-(b) (2020).

11. The criteria have been met for direct service connection for a headache disorder.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), (d) (2020).

12. The criteria have not been met for service connection for osteomyelitis. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  

13. As the AOJ’s reduction of the disability rating for the service-connected left wrist scars from 10 percent to 0 percent disabling, effective May 1, 2016, was not in accordance with the law, the criteria for restoration of the 10 percent rating have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.103(b), 3.105(e), (i), 3.344(a)-(b), 4.118, Diagnostic Code 7801 (criteria in effect prior to August 13, 2018).  

14. The criteria have not been met for an increased rating greater than 10 percent for two scars on the LEFT wrist.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.118, Diagnostic Code 7801 (criteria in effect prior to and after August 13, 2018).  

15. The criteria have not been met for an increased rating greater than 10 percent for hypertension.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7101 (2020).

16. The criteria have not been met for an increased rating greater than 10 percent for an injury to the LEFT wrist joint with arthritis, status post multiple surgeries.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5003-5215 (2020).

17. The criteria have been met for a separate 10 percent rating, but no greater, for weakness to Muscle Groups VII and VIII, already part of the Veteran’s service-connected LEFT wrist joint disability.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.55, 4.56, 4.69, 4.73, Diagnostic Code 5307 (2020); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from August 1975 to February 1981 in the U.S. Army.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

The reduction issue comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the AOJ. 

A September 2020 letter from the Veteran’s attorney clarified what specific issues the Veteran wanted to appeal to the Board when he filed his earlier January 2020 VA Form 9 (substantive appeal).  The Board has considered this letter in determining the specific issues on appeal.  

The Board acknowledges that in the April 2018 NOD (VA Form 21-0958) and December 2019 VA Form 9, the Veteran claimed entitlement to earlier effective dates for the increased rating issues on appeal (hypertension, a left wrist joint injury, and left wrist scars).  However, the current 10 percent ratings and accompanying effective dates for the award of service connection for hypertension, a left wrist joint injury, and left wrist scars were granted in much earlier February 1987 and April 2005 rating decisions.  Notably, a review of the record shows that the Veteran failed to submit a timely NOD or Substantive Appeal (e.g., VA Form 9 or equivalent statement) for the effective dates assigned when his initial 10 percent ratings were granted for these disabilities in 1987 and 2005.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302.  That is, he did not appeal the effective dates assigned when service connection was granted and he was first assigned initial 10 percent ratings for his hypertension, a left wrist joint injury, and left wrist scars.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal a downstream issue such as an earlier effective date).  

Generally, the April 2018 NOD the Veteran filed seeking an earlier effective date for his increased ratings on appeal would be treated as part of the initial or increased rating appeal, but not as a separate claim for an earlier effective date.  To the extent the Veteran is seeking an effective date prior to the date service connection was originally effectuated for his current increased rating claims, the Court has held that once there has been a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  The only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final decision, based on clear and unmistakable error (CUE).  Id. at 299-300 (2006).  No allegation of CUE in the effective dates assigned for these ratings is of record.   In short, in the present case, the Veteran did not timely appeal the current effective dates assigned in the earlier February 1987 and April 2005 rating decisions for his hypertension, left wrist, and left wrist scars.  It follows he cannot legally challenge the effective dates for the 10 percent ratings assigned, absent an allegation of CUE.  

Moreover, any effective date concerns in the course of his increased rating appeal would be entirely overlapping with the increased rating issues already on appeal for his hypertension, left wrist injury, and left wrist scars.  In other words, adding additional earlier effective dates issues to the current appeal for the increased rating claims would be redundant.  As pertinent to this point, in both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal.  A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s).  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  The potential for staged ratings “accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.”  Id. (internal quotation omitted).  Therefore, the adjudication in the present Board decision of the increased rating claims for hypertension, a left wrist joint injury, and left wrist scars will encompass any effective date concerns for the disability ratings ultimately assigned for these three issues.     

After certification of the appeal to the Board, in March 2020 the Board sent the Veteran (and his attorney) a 90-day docket letter.  In a June 2020 response to the 90-day docket letter, the Veteran requested a 120-day extension of time to submit additional medical evidence.  The Veteran filed this motion for extension after certification of the appeal to the Board.  See generally 38 C.F.R. §§ 20.3(i), 20.1305 (2020).  In August 2020, the Deputy Vice Chairman (DVC) of the Board granted the extension request for 120 days, on the basis of good cause.  Id.  The Board sees that 120 days has passed since the August 2020 grant of the extension request.  During this time period, a review of the claims file reveals the Veteran and his attorney in support of his appeal submitted additional argument, buddy statements, medical treatise evidence, and private medical opinions.

On this issue, under the provisions of 38 U.S.C. § 7105(e) (2018) for Legacy appeals, a waiver of AOJ consideration of new, pertinent evidence submitted by the Veteran or his representative after the appeal has been transferred to the Board is no longer required.  In other words, under this statute, a waiver of AOJ consideration is presumed, absent a written request from the Veteran that the AOJ review the new evidence first.  While the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) deleted the provisions of 38 U.S.C. § 7105(e) (2018), the Public Law specified that Legacy appeals (such as the current appeal) were to be treated differently than appeals under the AMA.  See Pub. L. 115-55 § 2(x)(1).  In summary, in the present case, there is essentially an automatic waiver of initial AOJ review of the additional evidence submitted during the 120-day extension time period.  Therefore, the Board accepts this additional lay and medical evidence and argument for inclusion in the record and consideration by the Board at this time, with or without any waiver.  See 38 C.F.R. §§ 20.901, 20.1305(c) (2020).

I.  VA’s Duty to Notify and Assist

VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters sent to the Veteran, dated in December 2016, February 2017, and April 2017.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020).   These letters advised the Veteran of the information and evidence necessary to substantiate his new and material evidence, service connection, secondary service connection, and increased rating claims.  

In the decision below, the Board has reopened all of the new and material evidence claims.  In addition, the Board has granted various claims on appeal for service connection, secondary service connection, and restoration of a reduction.   Therefore, the benefits sought on appeal have been granted in full for these particular claims.  Accordingly, regardless of whether the notice and assistance requirements have been met, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

Also, the Board has denied the following issues in the present Board decision: service connection for osteomyelitis and various increased rating issues on appeal.  However, with respect to these particular issues, neither the Veteran nor his attorney has raised any problems with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

In fact, in an October 2020 attorney brief, the Veteran’s attorney proffered substantive arguments on multiple service connection issues and the TDIU issue on appeal.  But most importantly, both the Veteran and his attorney neglected to proffer any substantive factual or legal argument or request for further development for many of the remaining issues on appeal, to include several of the issues being denied in the present Board decision.  According to Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), the Board does not have to address procedural arguments for the duty to notify or duty to assist that either the Veteran or his attorney failed to raise.  Instead, “[a] veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.”  Id.  

II.  New and Material Evidence

New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

For legacy claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995).  

The Court has viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  The Court has emphasized that the threshold is low for purposes of reopening a claim.  That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision.  Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010).  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance.  Evans v. Brown, 9 Vet. App. 273, 284 (1996).  Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  Shade, 24 Vet. App. at 120–22.  In short, there is a low threshold for determining whether evidence is new and material. 

For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted evidence is presumed, unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Mere offering of an alternative theory of entitlement for service connection (such as secondary service connection) does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005).  However, evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs v. Peake, 520 F.3d 1330, 1336–37 (Fed. Cir 2008).

	A.  Type II Diabetes Mellitus

In earlier July 1993, September 1994, and July 2013 rating decisions, the AOJ denied service connection for type II diabetes mellitus.  The Veteran was notified of each of these rating decisions and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of each rating decision.  Therefore, the July 1993, September 1994, and July 2013 rating decisions became final for the type II diabetes mellitus issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103.

  

In the latter, final July 2013 rating decision, the AOJ determined that new and material evidence had not been submitted to reopen the claim for service connection for type II diabetes mellitus.  The Court has held that in determining whether new and material evidence has been submitted to reopen a claim, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis, including on the basis of the absence of new and material evidence.  See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (emphasis added).

In the final July 1993, September 1994, and July 2013 rating decisions, the AOJ denied service connection for type II diabetes mellitus because the Veteran’s service treatment records (STRs) did not contain complaints, treatment, or a diagnosis for type II diabetes mellitus.  Moreover, type II diabetes mellitus, a presumptive condition, was not present to a compensable degree within one year following separation from active military service in 1981.  

Here, the Board finds that new and material evidence has been received to reopen the type II diabetes mellitus issue, subsequent to the final July 2013 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, subsequent to this final rating decision, the Veteran has submitted clinical evidence that his type II diabetes mellitus developed secondary to his service-connected hypertension disability.  See e.g., September 2014 African Journal for Physical, Health Education, Recreation and Dance article; August 2020 private medical opinion from Dr. S.W.E., D.O.  Previously, this clinical evidence in support of secondary service connection for type II diabetes mellitus was not in the record at the time of the prior final July 2013 rating decision.  Once again, the Federal Circuit has held that evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs, 520 F.3d at 1336–37.  Assuming the credibility of this medical treatise evidence and private medical opinion, this evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the type II diabetes mellitus claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  This evidence is therefore new and material.  The claim for service connection for the type II diabetes mellitus is reopened.  

	B.  Kidney Disease

In an earlier July 2013 rating decision, the AOJ denied service connection and secondary service connection for kidney disease.  The Veteran was notified of the July 2013 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of this rating decision.  Therefore, the July 2013 rating decision became final for the kidney disease issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2013).  

In the final July 2013 rating decision, the AOJ denied service connection for kidney disease because the Veteran’s STRs did not contain complaints, treatment, or diagnosis for kidney disease.  Moreover, a VA medical opinion of record at that time determined there was no link or nexus between a current kidney condition and the Veteran’s military service decades earlier.  Finally, the evidence of record failed to establish that his kidney condition resulted from, or was aggravated by, a service-connected disability.  See 38 C.F.R. §§ 3.310.  In short, service connection was denied on both a direct and secondary basis. 

Here, the Board finds that new and material evidence has been received to reopen the kidney disease issue, subsequent to the final July 2013 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, subsequent to this final rating decision, the Veteran has submitted clinical evidence that his advanced kidney disease and diabetic nephropathy developed secondary to a combination of his service-connected hypertension disability (which was “uncontrolled”) and his type II diabetes mellitus disability (which is now being service-connected in the present Board decision).  See August 2020 private medical opinion from Dr. S.W.E., D.O.  Previously, this clinical evidence in support of secondary service connection for kidney disease was not in the record at the time of the prior final July 2013 rating decision.  Once again, the Federal Circuit has held that evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs, 520 F.3d at 1336–37.  Assuming the credibility of this private medical opinion, this evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the kidney disease claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  This evidence is therefore new and material.  The claim for service connection for kidney disease is reopened.  

	C.  Coronary Artery Disease (Heart Disorder)

In earlier February 1987 and July 2014 rating decisions, the AOJ denied service connection for a heart disorder (described as a myocardial infarction).  The Veteran was notified of each of these rating decisions and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of each rating decision.  Therefore, the February 1987 and July 2014 rating decisions became final for the heart / coronary artery disease issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103.

In the final July 2014 rating decision, the AOJ denied service connection for a heart disorder (described as a myocardial infarction) because at that time there was no clinical evidence of a current heart disability in the Veteran’s STRs or in his post-service medical records. 

  

Here, the Board finds that new and material evidence has been received to reopen the heart / coronary artery disease issue, subsequent to the final July 2014 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, a June 2017 VA heart examination diagnosed the Veteran with current coronary artery disease.  Moreover, a July 2019 VA stress test confirmed a current diagnosis of coronary arteriosclerosis.  Finally, August 2019 VA left heart catheterization and various angiographies and other cardiovascular testing revealed current coronary artery disease.  These diagnoses for the heart were previously not of record prior to the final July 2014 rating decision.  The Board adds that the Veteran’s current coronary artery disease has the “same factual basis” as the previously denied heart disorder (described as a myocardial infarction at that time).  See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter).  Assuming the credibility of this VA clinical evidence diagnosing a current heart disorder, this evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the heart / coronary artery disease claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  This evidence is therefore new and material.  The claim for service connection for coronary artery disease is reopened.  

III.  Secondary Service Connection (SSC)

When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.  Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis).

Moreover, secondary service connection may also be established, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  

The Court has held that aggravation can still apply where there was a worsening of the disability, regardless of whether the degree of worsening was enough to warrant compensation under the Rating Schedule.  Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).  In fact, most recently, in Ward v. Wilkie, 31 Vet. App. 233, 239-42 (2019), the Court issued a precedential decision holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation.  That is, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence.”  Id.  Objective measurement, or numerical quantification, is not required to ascertain an increase in disability when aggravation occurs in the secondary service connection context.  Id.  

A VA medical opinion regarding both the causation and aggravation facets of a secondary service connection claim must be provided in a secondary service connection claim.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)).  Moreover, when addressing secondary service connection, a VA medical opinion should not combine the concepts of causation and aggravation.  Rather, separate and independent findings and rationale should be provided for each theory.  Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018).

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether secondary service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

	A.  Type II Diabetes Mellitus

Upon review of the evidence of record, the Board grants the appeal for service connection for type II diabetes mellitus as secondary to the Veteran’s service-connected hypertension.  

There is probative medical evidence of record demonstrating that the Veteran’s current type II diabetes mellitus is both proximately due to and aggravated by his service-connected hypertension.  See 38 C.F.R. § 3.310(a), (b).  The clinical evidence in support of secondary service connection for type II diabetes mellitus consists of a September 2014 African Journal for Physical, Health Education, Recreation, and Dance article and an August 2020 private medical opinion from Dr. S.W.E., D.O.  Dr. S.W.E. assessed in August 2020 that the Veteran’s service-connected hypertension, often “uncontrolled,” led to both the development of and permanent aggravation of his type II diabetes mellitus.  This private medical opinion is based on Dr. S.W.E.’s review of the Veteran’s treatment records, statements from family and friends, medical research and medical treatise documentation, and his August 2020 consultation with the Veteran.

Accordingly, secondary service connection for type II diabetes mellitus is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for type II diabetes mellitus on the basis that this condition is the direct result of the Veteran’s service-connected hypertension, as opposed to aggravation).

	B.  Kidney Disease

Upon review of the evidence of record, the Board grants the appeal for service connection for kidney disease (to include diabetic nephropathy) as secondary to service-connected disabilities (hypertension and type II diabetes mellitus).

There is probative medical evidence of record demonstrating that the Veteran’s current kidney disease is both proximately due to and aggravated by service-connected disabilities (hypertension and type II diabetes mellitus).  See 38 C.F.R. § 3.310(a), (b).  The clinical evidence in support of secondary service connection for kidney disease consists of the following evidence:  2006 to 2019 VA treatment records (frequently noting “diabetic” nephropathy of the kidneys as a complication of now service-connected type II diabetes); May 2011 VA H&P note (listing diabetes mellitus with diabetic nephropathy (of the kidneys)); March 2013 VA kidney examination (concluding that either the Veteran’s uncontrolled hypertension or his uncontrolled type II diabetes mellitus or both were contributing factors that damaged the Veteran’s kidneys); June 2009 University of Kansas private treatment record (documenting end stage renal disease of the kidneys secondary to both type II diabetes mellitus and hypertension); and August 2020 private medical opinion from Dr. S.W.E. (opining that a combination of “uncontrolled” hypertension and type II diabetes mellitus led to both the development of and permanent aggravation of the Veteran’s advanced kidney disease and diabetic nephropathy of the kidneys).  The private medical opinion of Dr. S.W.E. is based on a review of the Veteran’s treatment records, statements from family and friends, medical research and medical treatise documentation, and his August 2020 consultation with the Veteran.

Accordingly, secondary service connection for kidney disease (to include diabetic nephropathy) is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for kidney disease on the basis that this condition is the direct result of the Veteran’s service-connected hypertension and type II diabetes mellitus, as opposed to aggravation).

C.  Coronary Artery Disease

Upon review of the evidence of record, the Board grants the appeal for service connection for coronary artery disease of the heart as secondary to service-connected disabilities (hypertension and type II diabetes mellitus).

There is probative medical evidence of record demonstrating that the Veteran’s current coronary artery disease of the heart is proximately due to / caused by service-connected disabilities (hypertension and type II diabetes mellitus).  See 38 C.F.R. § 3.310(a).  The clinical evidence in support of secondary service connection for coronary artery disease of the heart consists of the following evidence:  a February 2004 VA cardiology outpatient note (indicating that the Veteran’s history is consistent with angina, particularly in view of the fact that he has multiple coronary artery disease risk factors such as hypertension and type II diabetes mellitus); April 2005 and June 2017 VA heart examination reports (surmising that a combination of risk factors such as hypertension and type II diabetes mellitus increased the Veteran’s risk for coronary artery disease of the heart because these conditions adversely affect and target organs such as the heart); and August 2020 private medical opinion from Dr. S.W.E. (opining that without the presence of his uncontrolled hypertension, the Veteran most likely would not have had the cardiac catherization for his heart symptoms, as the association of hypertension and coronary disease is well established in the medical literature).   The private medical opinion of Dr. S.W.E. is based on a review of the Veteran’s treatment records, statements from family and friends, medical research and medical treatise documentation, and his August 2020 consultation with the Veteran.

Accordingly, secondary service connection for coronary artery disease of the heart is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for coronary artery disease of the heart on the basis that this condition is the direct result of the Veteran’s service-connected hypertension and type II diabetes mellitus, as opposed to aggravation).

D.  Diabetic Retinopathy of the Eyes

Upon review of the evidence of record, the Board grants the appeal for service connection for the following eye conditions: LEFT eye diabetic retinopathy with traction retinal attachment with vitreous hemorrhage, RIGHT eye diabetic retinopathy with maculopathy, and BILATERAL eye hypertensive retinopathy, all as secondary to service-connected disabilities (hypertension and type II diabetes mellitus).  

In making this determination for the eyes, the Board in the present decision has considered whether service connection is warranted for all of the Veteran's eye / vision symptoms and all the Veteran’s eye diagnoses identified in the record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim).  That is, the Court in Clemons held that in determining the scope of a claim, VA must look to all possible diagnoses, conditions, and illnesses that a pro se non-expert claimant could have reasonably expected to have included in their claim as well as the evidence developed in processing that claim.  23 Vet. App. at 5-6.  The Federal Circuit recently termed this as the “Clemons lenient-claim-scope rule.” Murphy v. Wilkie, __ F.3d __, No. 2019-2064 (Fed. Cir. Dec. 21, 2020).

There is probative medical evidence of record demonstrating that all of the above listed eye conditions are proximately due to / caused by service-connected disabilities (hypertension and type II diabetes mellitus).  See 38 C.F.R. § 3.310(a).  The clinical evidence in support of secondary service connection for all of the above listed eye conditions consists of the following evidence: VA treatment records beginning in 1993 and ending in 2019 (repeatedly assessing proliferative diabetic retinopathy (PDR) of both eyes as a complication of the Veteran’s now service-connected type II diabetes mellitus); January 1998 VA optometry note and November 2000 VA optometry consult (observing RIGHT eye diabetic retinopathy with associated macular edema); October 2003 VA optometry consult (diagnosing LEFT eye diabetic retinopathy with associated traction retinal attachment with vitreous hemorrhage); October 2003 VA optometry consult (diagnosing RIGHT eye diabetic retinopathy with associated maculopathy); and December 2017 VA optometry note (indicating the existence of “hypertensive” retinopathy of both eyes).  

Accordingly, secondary service connection for LEFT eye diabetic retinopathy with traction retinal attachment with vitreous hemorrhage, RIGHT eye diabetic retinopathy with maculopathy, and BILATERAL eye hypertensive retinopathy is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for the above eye disabilities on the basis that these conditions are the direct result of the Veteran’s service-connected hypertension and type II diabetes mellitus, as opposed to aggravation).

E.  Depressive and Anxiety disorders with Insomnia

Upon review of the evidence of record, the Board grants the appeal for service connection for depressive and anxiety disorders with insomnia as secondary to pain and fatigue from his service-connected disabilities (hypertension, type II diabetes mellitus, kidney disease, coronary artery disease, and a left wrist joint).

There is probative medical evidence of record demonstrating that the Veteran’s current depressive and anxiety disorders with insomnia are both proximately due to and aggravated by various service-connected disabilities.  See 38 C.F.R. § 3.310(a), (b).  The clinical evidence in support of secondary service connection for depressive and anxiety disorders with insomnia consists of the following evidence: September 2000 VA mental health note (determining that the Veteran’s depression at that time was the result of his spouse’s death in 1999, but assessing that clinicians need to rule out mood disorder secondary to service-connected diabetes mellitus, with major depressive-like episodes); 1990 Journal of Abnormal Psychology article (medical treatise evidence linking depression to chronic pain); December 2018 VA care management note (observing anxiety and insomnia in the context of the Veteran’s various medical problems); August 2020 private psychological opinion by Dr. K.G., Ph.D. (opining that the Veteran’s mental health symptoms are aggravated by his service connected disabilities, to include left wrist pain and fatigue from medication for his hypertension disability and amputations from poorly managed type II diabetes mellitus).  This private medical opinion is based on Dr. K.G.’s review of the Veteran’s treatment records, statements from family and friends, medical research and medical treatise documentation, and his August 2020 consultation with the Veteran.

The Board acknowledges that post-service VA and private treatment records have at times attributed the Veteran’s depression and anxiety to several post-service factors such as personal tragedies and economic difficulties.  See e.g., September 2000 VA primary care nurse practitioner note and September 2000 VA mental health note.  Regardless, when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, in awarding secondary service connection, the Board has attributed the Veteran’s depressive and anxiety disorders with insomnia to pain and fatigue from his service-connected disabilities. 

Accordingly, secondary service connection for depressive and anxiety disorders with insomnia is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for depressive and anxiety disorders with insomnia on the basis that this condition is the direct result of pain and fatigue from the Veteran’s service-connected disabilities, as opposed to aggravation).

F.  Chronic Anemia

A September 2011 VA treatment recorded a diagnosis of iron deficiency anemia for the Veteran.  VA’s Rating Schedule considers anemia a disability that can be evaluated for compensation purposes.  See e.g., 38 C.F.R. § 4.117, Diagnostic Code 7720 (iron deficiency anemia).  A diagnosis of anemia is based on laboratory findings.  See Dorland's Illustrated Medical Dictionary 79 (31st ed. 2007) (defining anemia as a reduction below normal in the concentration of erythrocytes or hemoglobin in the blood, measured per millimeter (cubed) or by volume of packed red cells per 100mL of blood).  Among other symptoms, anemia "is frequently manifested by . . . shortness of breath."  See Stedman's Medical Dictionary, 75 (26th ed. 1995).

Upon review of the evidence of record, the Board grants the appeal for service connection for chronic anemia as secondary to now service-connected kidney disease.

There is probative medical evidence of record demonstrating that the Veteran’s current chronic anemia is proximately due to / caused by his service-connected kidney disease and renal failure.  See 38 C.F.R. § 3.310(a).  The clinical evidence in support of secondary service connection for chronic anemia consists of the following evidence:  September 2006 Mercy Regional Health Center report (observing anemia during the Veteran’s treatment for chronic renal insufficiency); October 2011 Mercy Regional Health Center report (diagnosing the Veteran with severe anemia with the necessity for kidney dialysis or a kidney transplant).  There is no other clinical explanation in the record for the Veteran’s chronic anemia.  

Accordingly, secondary service connection for chronic anemia granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for chronic anemia on the basis that this condition is the direct result of the Veteran’s now service-connected kidney disease, as opposed to aggravation).

	G.  GERD with Gastritis

Upon review of the evidence of record, the Board grants the appeal for service connection for GERD with gastritis as secondary to now service-connected type II diabetes mellitus.

There is probative medical evidence of record demonstrating that the Veteran’s current GERD with gastritis is proximately due to / caused by his service-connected type II diabetes mellitus.  See 38 C.F.R. § 3.310(a).  The clinical evidence in support of secondary service connection for GERD with gastritis consists of the following evidence:  A September 1997 VA esophagogastroduodenoscopy first diagnosed GERD for which he takes Zofran; March 2009 VA ER physician discharge (concluding gastritis was seen on biopsy – he was subsequently prescribed Proton pump inhibitors (PPIs)); August 1996 to December 2019 VA treatment records (repeatedly documenting “diabetic” gastroparesis (delayed gastric emptying); internet medical treatise evidence (indicating that gastroparesis may cause GERD since gastric emptying is impaired); April 2001 VA EK-nurse practitioner PC note (Veteran reports nausea 2-3 hours after eating and taking insulin – the assessment was “diabetic” gastritis with nausea after meals; October 2011 Mercy hospital report (assessing gastroparesis that is “multifactorial” but certainly “metabolic” in nature (i.e., related to type II diabetes mellitus or hypertension).  In summary, the Veteran’s GERD with gastritis was often discussed in VA and private treatment records as associated with his now service-connected type II diabetes mellitus. 

Accordingly, secondary service connection for GERD with gastritis is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).  

(In implementing this award, the AOJ should award secondary service connection for GERD with gastritis on the basis that this condition is the direct result of the Veteran’s now service-connected type II diabetes mellitus, as opposed to aggravation).

IV.  Service Connection (Direct)

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) the existence of 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 disease or injury incurred or aggravated during service — the “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record.  Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020).  Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007).  The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

	A.  Headache Disorder

Upon review of the evidence, the Board grants the appeal for service connection for a headache disorder.

Initially, the Veteran’s headache disorder is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the Veteran’s headache disorder.   

STRs document in-service treatment for headaches in May 1977, January 1978, March 1978, August 1980, and an additional undated STR noting “running headaches.”  The March 1978 STR remarked that the Veteran’s headaches have been “episodic” since August 1977 with no relief provided by Aspirin.  Therefore, STRs provide some evidence in support of in-service incurrence for headaches.  See 38 C.F.R. § 3.303(a).  Post-service, a few years after separation from service, a February 1986 VA hospital report assessed “occasional” mild headaches.  Continuing post-service headaches were assessed in additional VA hospital reports dated in December 1987, September 1988, February 1989, June 1989, and October 1989.  VA and private treatment records and examination documented that his headaches continued periodically in the 1990s and 2000s.  

With regard to a nexus, there is probative medical evidence of a nexus or link between the Veteran’s current headache disorder and his documented in-service headaches symptomatology.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Specifically, the Board has reviewed the August 2020 private medical opinion on a VA headaches DBQ (VA Form 21-096OC-8) by Dr. S.W.E., D.O.  This private physician reviewed and addressed the lay and clinical evidence in the claims file.  Dr. S.W.E. also performed a clinical interview with the Veteran.  After a thorough discussion and analysis of the evidence of record, Dr. S.W.E. concluded it was his expert opinion that the Veteran’s frequently prostrating headaches began in service.

With regard to a nexus, there is also lay evidence of record establishing that the Veteran’s headaches began during service and continued intermittently thereafter after separation from service in 1981.  Post-service, the Veteran is competent as a lay person to report continuing symptoms for headaches after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2); Pierce v. Principi, 18 Vet. App. 440 (2004) (lay evidence may can be probative of frequency, prolongation, and severity of headaches).  Moreover, the Veteran is credible in his report of his headaches continuing intermittently after his military service but increasing in frequency and severity over time.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible and probative).  His spouse also submitted an April 2020 statement in support of his headaches claim.  The Board emphasizes that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a headache condition after his separation from service in 1981.  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for a headache disorder.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  This claim is granted. 

	B.  Osteomyelitis

Osteomyelitis is defined as inflammation of the bone caused by infection, usually by a pyogenic organism, although any infectious agent may be involved.  See Dorland's Illustrated Medical Dictionary 1347 (32d ed. 2012).  The Court has defined osteomyelitis is inflammation of a bone caused by a pus-producing organism.  Seals v. Brown, 8 Vet. App. 291, 294 (1995).  VA’s Rating Schedule considers osteomyelitis a disability that can be evaluated for VA compensation purposes.  See e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5000 (osteomyelitis – acute, subacute, or chronic).  

The Court has discussed, and approved of, the use dictionaries such as Dorland’s Medical Dictionary by the Board and the Court to determine the meaning of terms in diagnostic codes but also noted that dictionaries or treatises cannot properly be used to make medical determinations.  Holmes v. Wilkie, 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020).  Previously, the Court has similarly held that in discussing the meaning of terms, the Board is permitted to consult with a dictionary.  See Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) (“It is commonplace to consult dictionaries to ascertain a term’s ordinary meaning.”); see also Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (using a law dictionary to define “decision”).  As such, the Board emphasizes its reliance on a medical dictionary to define a term is not in error.  See O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014) (referencing Dorland’s for nature of and symptoms associated with a condition).  In fact, the Court recently held that the Board’s statement of reasons or bases was inadequate because it lacked definitions of key terms.  Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The Veteran asserts he has osteomyelitis (described by the Veteran as a musculoskeletal condition) secondary to cirrhosis of the liver.  See December 12, 2016 Application for Compensation (VA Form 21-526EZ).

Importantly, the Veteran is not service-connected for any underlying cirrhosis of the liver.  Moreover, the issue of service connection for cirrhosis of the liver is not on appeal before the Board.  Absent an award of service connection by VA for the underlying cirrhosis of the liver, there is no basis to establish secondary service connection by way of causation or aggravation for any osteomyelitis.  See 38 C.F.R. § 3.310(a), (b).  

With regard to the existence of a current disability, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

However, more recently, the Federal Circuit Court provided a more definitive answer as to what constitutes a “disability” under VA law.  The Federal Circuit held that where pain causes functional impairment, a “disability” for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  The Federal Circuit explained that a "disability" under 38 U.S.C. § 1110 refers to the functional impairment in earning capacity, not the underlying cause of said disability.  Id. at 1363.  The Federal Circuit also noted that 38 C.F.R. § 4.10 defines the term “functional impairment” as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment’” Id.  

However, the Federal Circuit in Saunders limited its holding, by stating that a claimant’s report of “subjective” pain in and of itself will not establish a current disability.  Id. at 1367.  In other words, a claimant cannot demonstrate service connection simply by asserting subjective pain.  Id.  Rather, a claimant will need to show that his or her pain reaches the level of functional impairment of earning capacity.  Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain.  The Court’s holding in Saunders is supported by the public policy behind veterans’ compensation – i.e., to compensate veterans whose ability to earn a living is impaired as a result of their military service.  Id. 

Recently, the Court has further held that the Federal Circuit’s decision in the Saunders case is not limited to pain within an orthopedic context only.  Rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any “condition” that results in "functional impairment of earning capacity.”  Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020).  In yet another precedential decision issued a few weeks after Martinez-Bodon, the Court added that VA must make a factual determination as to whether a veteran’s symptoms or manifestations rise to the level of a “functional impairment in earning capacity.”  In determining whether a veteran’s impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.  Wait v. Wilkie, 33 Vet. App. 8, 17 (2020).  The Rating Schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive.  Id. at 16. 

The Saunders holding is also supported by VA regulation - 38 C.F.R. § 4.1 (the term disability is described in terms of "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations").  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1).

In short, according to Saunders and its recent progeny cases, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he or she has met the current disability requirement for VA compensation purposes.  Rather, a demonstration of current “functional impairment of earning capacity” is required to meet the standard of a current disability.

Upon review of the evidence, the Board denies the appeal for service connection for osteomyelitis.  

The most probative evidence of record weighs against the existence of a current osteomyelitis disability.  38 U.S.C. § 1110; 38 C.F.R. § 3.303; Saunders, 886 F.3d 1363-68.  In making this determination, the Board has considered that the requirement of a current disability is fulfilled if a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Moreover, the Court has held that a diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).  The Court in Romanowsky added that a determination that a diagnosis is “sufficiently proximate to the filing of a claim so as to constitute evidence of a ‘current diagnosis’ is a factual finding to be made by the Board in the first instance.” Id. at 294.  Thus, the Board has considered all the evidence in record, including the Veteran’s in-service STRs dated from 1975 to 1981, as well as post-service Social Security Administration (SSA) disability records, private treatment records, VA treatment records, and VA examinations dated in the 1970s, 1980s, 1990s, and 2000s, for any evidence of the Veteran having a current osteomyelitis disability.  Finally, the Board has considered the Veteran lay statements that he has a current osteomyelitis disability.  

STRs dated from 1975 to 1981 are negative for any complaint, treatment, or diagnosis of a osteomyelitis disability.  Post-service, from 1981 to 2019, the clinical evidence of record is also negative for any diagnosis of an osteomyelitis disability.  The Board has carefully reviewed SSA disability records, private treatment records, VA treatment records, and VA examinations dated in the 1970s, 1980s, 1990s, and 2000s.  All of these clinical records during these timeframes are negative for any complaints, treatment, or diagnosis for osteomyelitis.  Further, there is no evidence in the SSA, private, or VA treatment records of functional impairment in earning capacity due to pain or other symptomatology from an osteomyelitis disability.  Saunders, 886 F.3d at 1367-68.  Instead, the Veteran has been diagnosed with neck and left wrist disabilities, amputations, and other specific joint problems that cause functional impairment in earning capacity – none of these disabilities are on appeal at present.  (The Veteran has already been awarded service connection for his left wrist disability).  

That is, these post-service clinical records provide no evidence of potentially relevant symptoms or manifestations specifically attributable to osteomyelitis such as pain, weakness, fatigue, loss of coordination, loss of power, uncertainty of movement, less or more movement than normal, loss of speed, lack of endurance, deformity, absence of a muscle, joint, or bone, adhesion, atrophy, a loss of skin or muscle tone, loss of motion, pain on movement, swelling, interference with weight bearing, wincing, crepitus, muscle spasm, tenderness, instability, or any other impairments affecting earning capacity.  See 38 C.F.R. §§ 4.40, 4.45, 4.56, 4.59; Wait, 33 Vet. App. at 17.  In this respect, the Court recently emphasized in the Wait case that the Rating Schedule may serve as a guide to determine whether certain osteomyelitis symptomatology may impair earning capacity.  Id. at 16.  

Simply stated, no military, VA, private, or SSA medical professional in the record has clearly determined that the Veteran has an osteomyelitis disability.    

With regard to lay evidence, the Veteran contends that he has osteomyelitis (described by Veteran as a musculoskeletal condition) secondary to cirrhosis of the liver.  See December 12, 2016 Application for Compensation (VA Form 21-526EZ).  The Veteran is competent to report pain or any other observable symptomatology from osteomyelitis, as long as such symptomatology can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377.  However, the Board must then determine if any such lay assertions are credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record.  Miller, 32 Vet. App. at 257-262.  

However, with regard to lay evidence, neither the Veteran nor his attorney has provided any probative description of specific symptomatology due to alleged osteomyelitis or even advised which clinician diagnosed him with osteomyelitis.  Importantly, neither the Veteran nor his attorney has alleged in-service incurrence of osteomyelitis.  In fact, in an October 2020 attorney brief, the Veteran’s attorney proffered substantive arguments on multiple service connection issues and the TDIU issue on appeal.  But both the Veteran and his attorney neglected to proffer any substantive factual or legal argument or request for further development for the osteomyelitis issue on appeal.  VA is not required to read the minds of the veteran or his representative or his attorney.  Cintron v. West, 13 Vet. App. 251, 259 (1999).  The Court has reaffirmed that the duty to assist a claimant is not a one-way street.  Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019).  The duty to assist "does not encompass 'a duty to prove a claim with the claimant only in a passive role.'"  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).   

It follows that the Veteran has NOT presented lay evidence of functional impairment of earning capacity due to symptomatology from any osteomyelitis.  Saunders, 886 F.3d at 1367-68.  The Board has considered the Veteran’s general averments that he is entitled to service connection for osteomyelitis.  But the Veteran’s general, subjective assertions regarding the existence of an osteomyelitis disability are outweighed by the in-service and post-service clinical evidence of record.  These clinical records are extensive and span over 50 years.  In this regard, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  The Court has held that contemporaneous medical evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  

All of the clinical evidence discussed above indicates that the Veteran does not have any current disability for osteomyelitis.  The Veteran’s vague, generalized subjective assertions of a current osteomyelitis disability are outweighed by the more probative clinical STRs and post-service VA, private, and SSA medical evidence of record discussed above.  English, 30 Vet. App. at 352-53.  These clinical records are detailed.  They provide strong evidence against the claim, and do not comport with the Veteran’s lay assertions regarding the existence of a current osteomyelitis disability reaching the level of functional impairment in earning capacity, in light of the Saunders case.  The clinical evidence of record does not confirm that alleged osteomyelitis impacted or impaired the Veteran’s functional capacity such as interference with employment or activities of daily life.  There is no probative, credible evidence revealing any type of osteomyelitis manifestation of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.  See again Wait, 33 Vet. App. at 17.  

Once again, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997).  Absent probative or reliable evidence of a current osteomyelitis disability causing functional impairment in earning capacity, service connection for osteomyelitis cannot be granted in the present case.  Saunders, 886 F.3d at 1367-68.

Finally, the Board points out that it has reviewed thousands of pages of clinical records in the claims file.  But it was unable to locate a treatment report or examination showing a current diagnosis of osteomyelitis.  Given the sheer volume of clinical evidence contained in the Veteran’s claims file, it is conceivable the Board may have overlooked a piece of clinical evidence diagnosing osteomyelitis for the Veteran.  But regardless, there is neither a lay allegation from the Veteran nor clinical evidence of record establishing a nexus or link between any current diagnosis of osteomyelitis and the Veteran’s military service from 1975 to 1981.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for osteomyelitis.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The claim is denied. 

V.  Rating Reduction

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

The Veteran’s service-connected two scars on the left wrist associated with surgeries were originally rated under Diagnostic Code 7801 (scars due to other causes, not of the head, face, or neck, that are deep and nonlinear).  38 C.F.R. § 4.118. 

The left wrist scars were rated under the previous criteria for rating skin / scar disabilities in effect prior to August 13, 2018.  See 73 Fed. Reg. 54708 (Sept. 23, 2008) (previous criteria for rating skin / scar disabilities effective for the time period from October 23, 2008 to August 13, 2018) (codified at 38 C.F.R. pt. 4).    

Effective August 13, 2018, the criteria for rating skin / scar disabilities were revised.  See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018).  The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”  83 Fed. Reg. at 32593.  In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran.  See generally VAOPGCPREC 3-2000, 7-2003.  The Veteran’s original increased rating claim that started this appeal was filed on August 10, 2015.  Thus, the reduction claim was pending prior to the August 13, 2018 skin / scar revisions.  As such, the Veteran’s reduction claim for his left wrist scars could be considered under two sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018.  See again 83 Fed. Reg. at 32593.  In any event, since the Board is restoring the Veteran’s 10 percent rating for the left wrist under the rating criteria for the skin in effect prior to August 13, 2018, it is unnecessary to discuss the amended rating criteria for the skin in any detail for the reduction issue.  

Under the October 2008 version of Diagnostic Code 7801, a 10 percent rating is available when there are burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches).  Note (2) to Diagnostic Code 7801 defines a “deep” scar as one associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (October 23, 2008) (emphasis added).

From October 14, 2004 to May 1, 2016, for a period of more than five years, the Veteran’s two left wrist scars were rated as 10 percent disabling.  

From May 1, 2016 to the present time, the Veteran’s two left wrist scars are rated as 0 percent disabling (noncompensable).  

Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.

In a December 2015 rating decision with notice provided to the Veteran, the AOJ proposed to reduce the disability rating for the Veteran’s two left wrist scars from 10 percent to 0 percent.

In the February 2016 rating decision on appeal, the AOJ reduced the disability rating for the Veteran’s two left wrist scars from 10 percent to 0 percent, effective May 1, 2016.  This date was the first of the following month in which the 60-day period from the date of notice to the Veteran of the final rating action expired.  In particular, the final reduction was based on the findings of a September 2015 VA scar examiner.  This VA scar examiner found that the two wrist scars were linear and less than 39 sq. cm. in total area and did not cause any limitation of function and were neither painful nor unstable.  In essence, the AOJ concluded the Veteran’s two left wrist scars demonstrated sustained improvement, such that a reduction from 10 percent to 0 percent was warranted.  

In a December 12, 2016 Application for Compensation (VA Form 21-526EZ), the Veteran expressed disagreement with the reduction from 10 percent to 0 percent for his two left wrist scars.  The AOJ failed to adjudicate the reduction issue.  Instead, the AOJ only adjudicated the increased rating issue.  But the Board finds that the reduction issue is nevertheless on appeal here, since the Veteran never received notification of the final reduction, as will be explained below. 

Initially, the Board is cognizant that when adjudicating rating reduction claims, the due process requirements of 38 C.F.R. § 3.105(e) only apply where there is an actual reduction in disability compensation payments.  In the present case, the Board finds that the reduction of the rating for the two left wrist scars from 10 percent to 0 percent, effective May 1, 2016, reduced the total amount of compensation payable when considering all the Veteran’s service-connected disabilities under 38 C.F.R. §§ 4.25 (combined ratings table) and 4.26 (bilateral factor).  

In this regard, in the precedential opinion VAOPGCPREC 71-91 (Nov. 1991), the General Counsel for VA held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of actual total compensation payable.  The General Counsel reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.  Therefore, where the evaluation of a specific disability is reduced but the amount of compensation is not reduced, § 3.105(e) is not applicable.  See also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days’ notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the veteran).  In short, when dealing with cases that have potential reduction issues, it is necessary for the VA to check that actual compensation payments to the claimant have been reduced before proceeding with the procedures outlined in 38 C.F.R. § 3.105(e).  See Tatum v. Shinseki, 24 Vet. App. 139, 142-44 (2010).  The plain meaning of § 3.105(e) is that notice is warranted only when there is a reduction in compensation payments currently being made.  O’Connell v. Nicholson, 21 Vet. App. 89, 92 n.3 (2007).  In fact, there are many possible scenarios in which a particular evaluation is reduced, but the actual compensation payments are not.

Turning to the facts of the present case, the total amount of compensation payable to the Veteran when considering all of his service-connected disabilities under 38 C.F.R. §§ 4.25 (combined ratings table) and 4.26 (bilateral factor), was clearly reduced on the effective date of the reduction in question (May 1, 2016), such that the procedural provisions of 38 C.F.R. § 3.105(e) do apply here.  That is, as a result of the reduction on appeal, the Veteran’s combined evaluation for compensation from all his service-connected disabilities went from 30 percent to 20 percent, effective May 1, 2016.  This reduced the Veteran’s monthly rate of compensation from $455.75 to $263.20, effective May 1, 2016.  See e.g., February 2016 VBMS COMPENSATION AND PENSION AWARD.  Therefore, VA must first comply with the procedural due process protections of § 3.105(e) for the rating reduction to be valid. 

Under 38 C.F.R. § 3.105(e), where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  In addition, the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice.  38 C.F.R. § 3.105(i).  If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires.  38 C.F.R. § 3.105(e).

Under 38 C.F.R. § 3.105(i)(2), where a reduction in an evaluation of a service-connected disability is considered warranted, whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the beneficiary and his or her representative, setting forth the reasons therefor and the evidence upon which it is based.  38 C.F.R. § 3.105(i).  Similarly, another VA regulation states that claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief.  38 C.F.R. § 3.103(b)(1).  

The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated, and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  In fact, the Court has consistently held that when VA reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio (void from the beginning) and will be set aside.  Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995

The Board is required to establish, by a preponderance of the evidence, that the rating reduction on appeal should be sustained.  See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). 

Upon review of the evidence, not all the procedural requirements for the reduction were met pursuant to 38 C.F.R. § 3.105(e) and (i).  The reduction from 10 percent to 0 percent for the Veteran’s service-connected two left wrist scars was not proper.  As such, restoration of the 10 percent rating is warranted.  

In this regard, the claims file contains both an initial December 2015 proposed rating decision and a February 2016 final rating decision for the reduction.  The Veteran was notified of the December 2015 proposed reduction.  However, for the February 2016 final reduction, no notice letter was issued to the Veteran or his representative, setting forth the reasons therefor and the evidence upon which the reduction was based.  See 38 C.F.R. § 3.105(i)(2).  As such, the Veteran was notified of neither the final reduction itself from 10 percent to 0 percent, nor of the May 1, 2016 effective date for the reduction.  

It follows that failure to consider and properly apply the due process provisions of 38 C.F.R. § 3.105(i)(2), as is the case here, renders a rating decision void ab initio (void from the beginning).  Such an omission is error and not in accordance with the law.  Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324.  In other words, when VA does not do what the law requires, it is as if the reduction had never occurred.  The rating for the two left wrist scars under DC 7801 must be automatically restored to its previous 10 percent level.  It is unnecessary for the Board to even address whether the substantive provisions for the reduction listed under 38 C.F.R. § 3.344(a) and (b) were met, since the threshold procedural provisions for the reduction listed under 38 C.F.R. § 3.105(i)(2) were clearly not met. 

Accordingly, the 10 percent rating assigned for the two left wrist scars under Diagnostic Code 7801 is restored, due to a due process error.  See 38 C.F.R. §§ 3.103(b)(1), 3.105(i).  Based on the restoration to its previous level, this 10 percent rating for the two wrist scars is now in effect from October 14, 2004 through the present.  The Veteran’s appeal of the reduction issue is granted. 

VI.  Increased Rating (IR)

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  

	A.  Left Wrist Scars at 10 Percent

As discussed above, the 10 percent rating for the Veteran’s two left wrist scars have been restored. 

From October 14, 2004 to the present, the Veteran’s service-connected two left wrist scars are assigned a 10 percent rating under Diagnostic Code 7801 (scars due to other causes, not of the head, face, or neck, that are deep and nonlinear).  38 C.F.R. § 4.118 (criteria in effect prior to August 13, 2018).  His two left wrist scars are post-surgical scars for the left wrist.  This 10 percent rating has been in effect since October 14, 2004, the day his original service connection claim was filed.   

The Veteran filed an increased rating claim for his service-connected two left wrist scars in August 2015.  The Veteran contends that he is entitled to a higher 20 percent rating or a separate compensable rating.  See April 2018 NOD (VA Form 21-0958); January 2020 VA Form 9.  However, neither he nor his attorney provided any substantive argument as to why he is entitled to a higher rating or separate compensable rating for his left wrist scars.

When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his left wrist scars has been more severe than at others, and rate it accordingly.  “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from August 2014 to the present, in adjudicating the increased rating claim.

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history for his left wrist scars when assigning a disability evaluation in the present case.  38 C.F.R. § 4.1.  

Effective October 23, 2008, the criteria for rating skin / scar disabilities were revised.  See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4).  However, the October 2008 amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria.  38 C.F.R. § 4.118 (after October 2008).  In the present case, the Veteran’s increased rating claim was filed in August 2015, subsequent to the October 2008 effective date for these amendments.  Therefore, the October 2008 skin criteria clearly apply to the Veteran’s scar disability on appeal. 

Effective August 13, 2018, during the course of the appeal, the criteria for rating skin / scar disabilities were again revised.  See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018).  The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”  83 Fed. Reg. at 32593.  In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran.  See generally VAOPGCPREC 3-2000, 7-2003.  As noted above, the Veteran’s increased rating claim was filed in August 2015.  Thus, the increased rating claim was pending prior to the August 13, 2018 revisions.  As such, the Veteran’s increased rating claim for his two left wrist scars must be considered under both sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018.  See again 83 Fed. Reg. at 32593 (emphasis added).

The August 13, 2018 skin amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity.  In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved.  If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used.  See 38 C.F.R. § 4.118(b) (August 13, 2018).  

However, the August 13, 2018 skin amendments presented no changes to the rating criteria for Diagnostic Codes 7800, 7804, and 7805.  In other words, Diagnostic Codes 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018.  Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018).  Finally, both prior to and after August 13, 2018, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804.

In summary, the Board will consider both sets of the rating criteria for the skin: the amended October 2008 criteria and the most recent August 2018 criteria.  

However, under both sets of skin criteria, throughout the entire appeal period from August 2014 to the present, the evidence of record does not warrant an increased rating in excess of 10 percent for his two left wrist scars associated with his left wrist surgeries under Diagnostic Code 7801, OR any additional, separate compensable scar rating under any other diagnostic code.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  In making this determination, the Board has carefully reviewed both the medical and lay evidence of record.  This evidence includes VA scar examinations dated in September 2015, March 2017, and October 2019.  This evidence also includes VA treatment records, private treatment records, and SSA disability records dated through 2019; however, none of his clinical treatment records documented any complaints related to his two left wrist scars.  Finally, this evidence also includes the Veteran’s lay statements and attorney argument of record, which are also negative for any complaints regarding his two left wrist scars.   

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  It is permissible to switch diagnostic codes to more accurately reflect a claimant’s current symptoms.  See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability).  In this case, the Board has considered whether another rating code is “more appropriate” than the ones used by the AOJ for the Veteran’s left wrist scars.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  In short, the Board will examine whether a higher or additional scar rating is warranted under Diagnostic Codes 7800-7805 under both sets of skin criteria.

Under the most recent August 2018 version of Diagnostic Code 7801, a 10 percent rating is available for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying tissue damage (that are deep), at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches).  A higher 20 percent rating is available when the scar or scars are at least 77 sq. cm. in area but less than 465 sq. cm. (or between 12 sq. inches and 72 sq. inches).  See 38 C.F.R. § 4.118 (August 13, 2018) (emphasis added).

Note (1) to Diagnostic Code 7801 provides that for the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Id.   

Note (2) to Diagnostic Code 7801 provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body.  Combine the separate evaluations under §4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.  Id.   

Under the October 2008 version of Diagnostic Code 7801, a 10 percent rating is available when there are burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches).  A higher 20 percent rating is available when the scar or scars are at least 77 sq. cm. in area but less than 465 sq. cm. (or between 12 sq. inches and 72 sq. inches).  Note (2) to Diagnostic Code 7801 defines a “deep” scar as one associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (October 23, 2008) (emphasis added).

Upon review, under both sets of skin criteria, the evidence of record does not warrant an increased rating in excess of the 10 percent (already awarded) for the two left wrist surgical scars associated with left wrist surgeries under Diagnostic Code 7801.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  That is, under both sets of rating criteria, the Veteran’s two left wrist scars are not at least 77 sq. cm. in area but less than 465 sq. cm. (or between 12 sq. inches and 72 sq. inches), which is required for a higher 20 percent rating under Diagnostic Code 7801.  Id.  VA scar examinations dated in September 2015, March 2017, and October 2019 all found that the total area of the two left wrist scars was much smaller that the area required for a higher 20 percent rating under Diagnostic Code 7801.  Thus, the rating criteria for Diagnostic Code 7801 does not provide the Veteran with a rating higher than the 10 percent rating he already has throughout the entire appeal period for his two left wrist scars.  Id.    

Under both sets of skin criteria, for Diagnostic Code 7800, the Veteran does not contend, and the objective evidence does not demonstrate: burn scars, scars due to other causes, or disfigurement on the head, face, or neck with one characteristic of disfigurement; or disfigurement of the head, face, or neck.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  The Veteran’s service-connected scars on appeal are located on his left wrist.  These scars are not located near the head, face, or neck.  Thus, Diagnostic Code 7800 does not apply to his service-connected scars on appeal.    

Under the most recent August 2018 version of Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.  Notes (1) and (2) to Diagnostic Code 7802 are identical to Notes (1) and (2) of Diagnostic Code 7801 above.  See 38 C.F.R. § 4.118 (August 13, 2018) (emphasis added).

Under the October 2008 version of Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.  Note (1) to Diagnostic Code 7802 defines a “superficial” scar as one not associated with underlying soft tissue damage.  See 38 C.F.R. § 4.118 (October 23, 2008) (emphasis added).  

Under both versions of Diagnostic Code 7802, the Board acknowledges the AOJ appears to have at times considered the two left wrist scars to be rated under Diagnostic Code 7802 instead of 7801.  This is because there was no indication both left wrist scars had any underlying soft tissue damage during the course of the appeal.  However, at no point in time did the total area of these scars cover an area of 144 square inches (929 sq. cm.) or greater.  This criterion is necessary for a compensable rating under both versions of Diagnostic Code 7802.  The findings of the September 2015, March 2017, and October 2019 VA scar examiners provide no basis for a separate compensable rating under Diagnostic Code 7802.  Thus, the criteria for a 10 percent rating under both versions of Diagnostic Code 7802 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  

Both prior to and after August 13, 2018, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804.  Therefore, this Diagnostic Code cannot be considered here. 

The October 2008 and August 2018 versions of the rating criteria for Diagnostic Code 7804 are the same.  In other words, there is no difference between these two versions of Diagnostic Code 7804.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A maximum 30 percent rating is warranted for five or more scars that are unstable or painful.  

Note (1) to Diagnostic Code 7804 defines an “unstable” scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Id.  

Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation based on the total number of unstable or painful scars.  Id. 

Note (3) to Diagnostic Code 7804 provides that scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also be rated under Diagnostic Code 7804.   

Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008). 

Under both sets of skin criteria, for Diagnostic Code 7804, the Veteran does not contend, and the objective evidence does not demonstrate: one or two left wrist scars that are unstable or painful.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  During the course of the appeal, the Veteran’s service-connected left wrist scars have not been described as unstable, painful, or tender.  This criterion is necessary for a compensable rating under both versions of Diagnostic Code 7804.  The findings of the September 2015, March 2017, and October 2019 VA scar examiners provide no basis for a separate compensable rating for painful scars under Diagnostic Code 7804.  Neither does any other clinical or lay evidence of record.  Thus, the criteria for a separate 10 percent rating under both versions of Diagnostic Code 7804 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  

Finally, the October 2008 and August 2018 versions for Diagnostic Code 7805 are essentially the same.  In other words, there is no substantive difference between these two versions of Diagnostic Code 7805.  Under these versions of Diagnostic Code 7805 for other scars including linear scars, a separate rating (under an appropriate diagnostic code) can also be warranted for any disabling effects not considered under Diagnostic Codes 7800-7804.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).  This could include, for example, residuals of associated muscle or nerve injury.  See e.g., Note (4) to Diagnostic Code 7800.  Another example would be a scar causing limitation of motion or some other type of limitation of function.   

Upon review, under both sets of skin criteria, a separate, compensable 10 percent rating is not warranted under Diagnostic Code 7805.  None of the Veteran’s two left wrist post-surgical scars themselves resulted in muscle or nerve damage.  To the extent there is any limitation of motion of the left wrist caused by the two left wrist scars, limitation of wrist motion is already compensated within the separate 10 percent rating assigned for the orthopedic manifestations of his left wrist disability under 38 C.F.R. § 4.71a, Diagnostic Code 5215.  Moreover, the September 2015, March 2017, and October 2019 VA scar examiners concluded the Veteran’s two left wrist scars did not result in limitation of motion or loss of function or functional impairment.  What’s more, VA and private and SSA treatment records dated through 2019 are also negative for any complaints pertaining to the Veteran’s two left wrist scars.  There are no other “disabling” effects of these scars not already considered in the current 10 percent rating provided under Diagnostic Code 7801.  

At times, it appears the AOJ has already assigned a separate 0 percent rating for the Veteran’s two left wrist scars under Diagnostic Code 7805 (scars, other).  See 38 C.F.R. § 4.118.  In every case where the requirements for a compensable rating are not met, a zero percent evaluation may be assigned, even if the diagnostic schedule does not provide for such a noncompensable evaluation.  38 C.F.R. § 4.31.  In light of the above discussion, the Board finds no basis in the record to increase the 0 percent rating to 10 percent under any version of Diagnostic Code 7805.  

In summary, the criteria for a separate, compensable 10 percent rating under both versions of Diagnostic Code 7805 are not met here.  Compare 38 C.F.R. § 4.118 (August 13, 2018) with 38 C.F.R. § 4.118 (October 23, 2008).

As a lay person, the Board emphasizes that the Veteran is uniquely suited to describe the severity, frequency, and duration of symptomatology from his service-connected left wrist scars.  See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  In this regard, the Court has held a skin condition is the type of condition lending itself to lay observation.  McCartt v. West, 12 Vet. App. 164, 167 (1999).  Moreover, some chronic conditions, in particular skin conditions, are subject to active and inactive stages.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  This notwithstanding, during the course of the appeal, neither the Veteran nor his attorney has provided any probative description of specific symptomatology from his left wrist scars.  In fact, in an October 2020 attorney brief, the Veteran’s attorney proffered substantive arguments on multiple service connection issues and the TDIU issue on appeal.  But both Veteran and his attorney neglected to proffer any substantive factual or legal argument or request for further development for the increased rating issue for his two left wrist scars.  

Accordingly, the preponderance of the evidence is against an increased disability rating greater than 10 percent for the Veteran’s service-connected two left wrist scars, status post left wrist surgeries.  38 C.F.R. § 4.3.

Finally, for the increased rating issue for the two left wrist scars, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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).

	B.  Hypertension at 10 Percent

The Veteran’s service-connected hypertension has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease).  This 10 percent rating has remained in effect since May 28, 1986, the day his original claim for service connection was received.  

Initially, the Board sees the Veteran’s 10 percent rating for his hypertension has been in effect for 34 years.  A disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud.  38 C.F.R. § 3.951(b).  Therefore, by law, the Veteran’s service-connected hypertension disability cannot be reduced. 

The Veteran filed an increased rating claim for his service-connected hypertension in a December 2016 Application for Compensation (VA Form 21-526EZ).  The Veteran and his attorney believe that his hypertension is worse than rated.  However, neither have provided any discussion on why a rating above 10 percent is warranted.   

The Veteran’s entire history is reviewed when assigning a disability evaluation.  38 C.F.R. § 4.1.  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his hypertension has been more severe than at others, and rate it accordingly.  

“The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from December 2015 to the present, in adjudicating the increased rating claim at issue.  However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning a disability evaluation for hypertension in the present case.  38 C.F.R. § 4.1.  

Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more.  A 10 percent rating also is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating is assigned for hypertension with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more.  The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104 (2020). 

There are three notes to 38 C.F.R. § 4.104, Diagnostic Code 7101.  Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  However, that requirement is not applicable to increased rating claims.  Gill v. Shinseki, 26 Vet. App. 386, 391 (2013).  For purposes of this section (Diagnostic Code 7101), the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm.  

Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation.  

Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. 

In rating hypertension under Diagnostic Code 7101, the Board may consider blood pressure readings taken while a veteran is using medication.  McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (holding that DC 7101 contemplates the effects of medication and therefore Jones v. Shinseki, 26 Vet. App. 56 (2012), does not apply.)

The term “predominant” is not defined in the rating criteria.  Merriam-Webster defines predominant to mean “being most frequent or common.”  See, e.g., “predominant,” Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant.

Upon review, there is no basis for an increased rating beyond the 10 percent level for hypertension.  38 C.F.R. § 4.7.  In this regard, the probative lay and medical evidence of evidence does not reveal blood pressure readings with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, which are the criteria necessary to demonstrate a 20 percent rating.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.  In making this determination, the Board has reviewed the Veteran’s lay statements, private and VA and SSA treatment records dated from 2015 to 2019, and several VA examinations of record.  After carefully reviewing dozens of blood pressure readings in the claims file from 2015 onwards, these records are unremarkable for any evidence supportive of a 20 percent rating (that is, blood pressure readings of 200/110).  See e.g., June 2014 VA hypertension examination (165/83, 156/76, 160/82); March 2017 VA hypertension examination (116/54, 131/62, 154/77); and October 2019 VA hypertension examination (136/72, 148/76 and 142/63).  There are also numerous blood pressure readings contained in private, SSA, and VA treatment records.  After carefully reviewing dozens of blood pressure readings contained in these records, they do not reveal blood pressure readings with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, which are the criteria necessary to demonstrate a higher 20 percent rating.  Moreover, neither the Veteran nor his attorney has specifically discussed any elevated blood pressure readings indicative of a 20 percent rating.  Several earlier VA treatment records dated in 2014 (before the appeal period) did document several instances of systolic pressure predominantly 200 or more.  However, these instances are outliers and do not demonstrate systolic pressure “predominantly” 200 or more, as required by 38 C.F.R. § 4.104, Diagnostic Code 7101.

Lastly, the Board has considered whether without continuous hypertension medication, the Veteran’s blood pressure readings would elevate to higher levels.  Throughout the appeal, VA and private and SSA treatment records dated from 2015 to 2019 and VA hypertension examinations confirmed the Veteran was prescribed lisinopril, amlodipine, clonidine, and doxazosin mesylate to control his hypertension.  On this issue, the Board acknowledges the Court’s holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  However, the Court subsequently determined that for hypertension, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension.  McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016).  That is, the rating criteria for hypertension already take into account the ameliorative effects of medication.  Id.  As such, the Board is not required to discuss the ameliorative effects of medication when evaluating whether the Veteran is entitled to a rating over 10 percent for hypertension.  

Accordingly, the preponderance of the evidence is against an increased rating above 10 percent for hypertension.  38 C.F.R. § 4.3.  

With regard to the potential for an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board has considered that in the present decision, the Board has service connected the Veteran for depressive and anxiety disorders with insomnia as secondary to fatigue from medication he takes for his service-connected hypertension.  That is, the Veteran does experience fatigue due to his service-connected hypertensive medications.  He also experiences fatigue due to his service-connected kidney disease.

The “determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry.”  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).  If the AOJ or Board determines that (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology (when viewing the rating schedule as a whole under a totality of factors inquiry), and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Long v. Wilkie, __ Vet. App. __, No. 16-1537 (December 30, 2020) (en banc).  See also 38 C.F.R. § 3.321(b)(1).  Neither the AOJ nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).  

Regardless, the Veteran’s now service-connected depressive and anxiety disorders with insomnia and his kidney disease, when rated by the AOJ, will encompass his symptoms of fatigue.  In this respect, the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130 is essentially limitless with regard to the psychiatric factors and symptoms that may be considered in assigning a particular schedular rating, using the term “such as” for those symptoms not specifically listed.  Also, the Rating Schedule when rating renal dysfunction of the kidneys encompasses poor health with lethargy, weakness, and limitation of exertion.  See 38 C.F.R. §§ 4.115a, 4.115b (Ratings of the Genitourinary System).  On this issue, extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is appropriate only after the VA has exhausted all other tools for a schedular disability rating, whether direct, secondary, or analogous ratings.  Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019).  Stated another way, extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools, such as the case with the Veteran’s fatigue he experiences from his hypertensive medications and his kidney disease.  Id.  

	C.  Left Wrist Joint at 10 Percent

The Veteran’s service-connected left wrist injury status post open reduction internal fixation with ulnar resection, to include muscle weakness, has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5215 (arthritis with limitation of motion of the wrist).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  38 C.F.R. § 4.27.  This 0 percent rating has remained in effect since October 14, 2014, the date the underlying service connection claim was received by the AOJ.    

The Veteran filed an increased rating claim for his service-connected left wrist disability in a December 2016 Application for Compensation (VA Form 21-526EZ).  The Veteran and his attorney believe that his left wrist is worse than rated.  The Veteran has also submitted April 2020 and June 2020 buddy statements from friends and family detailing his functional loss and impairment in daily activities due to his left wrist.     

The Veteran’s entire history is reviewed when assigning a disability evaluation.  38 C.F.R. § 4.1.  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his left wrist disability has been more severe than at others, and rate it accordingly.  

“The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from December 2015 to the present, in adjudicating the increased rating claim at issue.  However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning a disability evaluation for his left wrist in the present case.  38 C.F.R. § 4.1.  

Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion.  38 C.F.R. § 4.71, Plate I.  Normal ulnar deviation is 45 degrees, while normal radiation deviation is 20 degrees.  Id.      

Diagnostic Code 5215 provides for a maximum rating of 10 percent for limitation of motion of the wrist for either the dominant or non-dominant hand when dorsiflexion is less than 15 degrees or when palmer flexion is limited in line with the forearm.  38 C.F.R. § 4.71a (2020).  A 10 percent rating is the maximum rating available under Diagnostic Code 5215.  

Diagnostic Code 5214 provides for a 30 percent disability evaluation when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the major wrist.  A 40 percent disability evaluation is contemplated for ankylosis of the major wrist in any other position, except favorable.  A maximum 50 percent rating is assigned for ankylosis of the major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation.  38 C.F.R. § 4.71a (2020).

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes.  See 38 C.F.R. § 4.69.  As demonstrated by the medical evidence of record, including the September 2015, March 2017, and October 2019 VA wrist examinations, the Veteran is ambidextrous, and as such, his service-connected left wrist is considered to be on the dominant hand.  Id. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 

The Court has held that “limitation of motion” and “painful motion” are distinct concepts, although limitation of motion is a factor that may be considered to determine whether painful motion is present.  Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019). 

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

Read together, Diagnostic Code 5003 / 5010 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  

Further, 38 C.F.R. § 4.59 requires that "[t]he 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."  Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).  In addition, the assignment of a disability rating should take into account limitation of functional ability or additional range of motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

Upon review of the evidence, the Veteran is not entitled to an increased evaluation in excess of 10 percent for his left wrist joint disability.  See 38 C.F.R. § 4.7.  On this issue, the Veteran is already at the maximum rating for limitation of motion of the left wrist / hand under Diagnostic Code 5215.  There is no clinical evidence and no lay allegation of ankylosis of the left wrist / hand under Diagnostic Code 5214 that could potentially have provided higher 20, 30, or 40 percent ratings.  In fact, the September 2015, March 2017, and October 2019 VA wrist examinations specifically remarked there was no ankylosis in either of the Veteran’s wrists.  Although the Veteran exhibited limitation of left wrist motion at these VA examinations, even with consideration of pain and other functional loss factors, these findings were not akin to ankylosis.  He exhibited pain, tenderness, swelling, deformity with the distal ulna free and mobile and elevated under the skin, and popping.  In addition, VA treatment records, SSA disability records, and private treatment records dated through 2019 did not diagnose ankylosis of either wrist.  Consequently, the Board concludes that Diagnostic Code 5215 for limitation of motion of the left wrist most appropriately reflects the Veteran’s service-connected left wrist disability, as opposed to Diagnostic Code 5214 for ankylosis of the wrist.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence).

The Board acknowledges the Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016).  The October 2019 VA wrist examination was compliant in this respect. 

The Veteran has also been diagnosed with traumatic arthritis of the left wrist.  Diagnostic Code 5010 provides that arthritis due to trauma should be rated as degenerative arthritis under Diagnostic Code 5003.  Pursuant to Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion of the affected joint.  See 38 C.F.R. §§ 4.71a.  When limitation of motion is noncompensable, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.  In the present case, the Veteran already has been assigned a 10 percent rating due to limitation of motion from his left wrist arthritis.  See Diagnostic Codes 5003-5215 (arthritis with limitation of motion of the wrist).  

But in the absence of limitation of motion, under Diagnostic Code 5003, a 10 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  A higher 20 percent rating is appropriate with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a.    

Under 38 C.F.R. § 4.45(f), for the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints.  Also, under this regulation, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.).  38 C.F.R. § 4.45(f).  The Federal Circuit has clarified that a 10 or 20 percent rating under Diagnostic Code 5003 is warranted for a group of minor joints only where there is limitation of motion in more than one joint in the group (such as limitation of motion in more than one interphalangeal joint).  Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed. Cir. 2014).

In the present case, the Veteran has arthritis in his left hand.  He also experiences occasional incapacitating exacerbations in the left wrist when he has to rest (see April 2020 lay statements from spouse and friend of Veteran).  In any event, no evidence of record demonstrates X-ray evidence of involvement of two or more major joints or two or more minor joint groups, accompanying his occasional incapacitating exacerbations, which is required for a higher 20 percent rating for degenerative arthritis of the left wrist.  38 C.F.R. § 4.71a.  Thus, a higher 20 percent rating for left wrist arthritis under Diagnostic Code 5003 is not warranted here. 

In addition, the Board sees that the Veteran has associated weakness due to extensor lag in the left ring and little fingers.  See December 2004 VA operative report; September 2015 VA muscle examination for wrist; and June 2017 VA elbow and forearm examination.  This symptomatology is part and parcel of his service-connected left wrist disability.  Wrist flexion causes his fingers to extend.  And he has pain in his left hand and fingers according to VA examiners.  Regardless, the finds that a separate compensable (orthopedic) rating is not warranted for the Veteran’s left ring and little fingers when reviewing 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5230 - ankylosis or limitation of motion of single or multiple digits of the hand.  This is because he does not have ankylosis in any finger.  Also, under Diagnostic Code 5230, limitation of motion in the ring or little finger can only receive a noncompensable rating. 

With regard to a separate neurological rating for the left upper extremity, based on the findings of the September 2015 VA peripheral nerves examination, the AOJ in a December 2015 rating decision denied service connection and secondary service connection for left upper extremity peripheral neuropathy.  This rating decision was not appealed to the Board. 

However, as explained further below, a separate 10 percent disability rating for a muscle injury to the left hand is being granted under 38 C.F.R. § 4.73, Diagnostic Codes 5307 - muscle group injuries to the forearm and hand - Muscle Group VII.

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, these changes did not impact Diagnostic Codes 5214 to 5230 for the wrist and fingers.   

Accordingly, the Board finds that the preponderance of the evidence is against an increased rating in excess of 10 percent for joint manifestations of the Veteran’s service-connected left wrist disability.  38 C.F.R. § 4.3.  

Finally, with regard to the increased claim for the right wrist, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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).  

D.  Separate Left Wrist Muscle Injury

The Board has also considered whether a separate, additional rating is warranted for documented muscle weakness to Muscle Groups VII and VIII, associated with the service-connected left wrist injury, under diagnostic codes for muscle injuries to the forearm and hand.  See 38 C.F.R. § 4.73, Diagnostic Codes 5307-5308.  

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Thus, the Board has considered the propriety of assigning a higher, or separate rating(s) for the left wrist / hand, under another diagnostic code(s).  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided.  Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a big extent, so that special rules are included in the appropriate bodily system for their evaluation.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.”  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology”).

However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  See also Fanning v. Brown, 4 Vet. App. 225 (1993).  The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping.  The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate.  Id.  

The Board emphasizes it is permissible to switch diagnostic codes to more accurately reflect a claimant’s current symptoms.  See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability).

The Court has also held that if the evidence warrants a separate evaluation for different manifestations of disability under a different diagnostic code, VA may assign such rating, but must also maintain the original evaluation under the diagnostic code protected under § 3.951(b) (for an assigned rating in effect for more than 20 years).  Murray v. Shinseki, 24 Vet. App. 420, 426 (2011). 

Historically, the Veteran injured his left wrist playing football while on active duty in 1977.  He did not immediately seek medical treatment until a few days later.  STR X-rays showed a dislocation of the left distal ulna.  He was transferred to a hospital in Germany where he underwent an open reduction internal fixation (ORIF) for the left wrist.  After the surgery, he had a cast applied to his left wrist for 12 weeks.  Post-service, he underwent two more left wrist surgeries at the VA.  He has two surgical scars for his left wrist, which are already service-connected. 

Post-service, September 2015 VA muscle and joints examinations for the left wrist assessed reduced muscle strength of 4/5 in left wrist flexion and left wrist extension to Muscle Groups VII and VIII.  The VA examiner opined this muscle weakness developed secondary to the Veteran’s service-connected 1977 left wrist surgery.  The Veteran’s muscle injury was considered to be part of his service-connected left wrist disability.  But he was never assigned a separate rating for his left wrist muscle injury by the AOJ.  

According to Diagnostic Code 5307, Muscle Group VII involves flexion of wrist and fingers.  Muscles arising from internal condyle of humerus:  Flexors of the carpus and long flexors of fingers and thumb; pronator.  38 C.F.R. § 4.73.

According to Diagnostic Code 5308, Muscle Group VIII involves extension of wrist, fingers, and thumb; abduction of thumb. Muscles arising mainly from external condyle of humerus: Extensors of carpus, fingers, and thumb; supinator.  Id. 

Under 38 C.F.R. § 4.56, governing the evaluation of muscle disabilities, an open comminuted fracture with muscle or tendon 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.  38 C.F.R. § 4.56(a).  A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  38 C.F.R. § 4.56(b).   

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. 38 C.F.R. § 4.56(c).  

The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection.  A history with regard to this type of injury should include 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.  Objective findings should include minimal scarring, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

The type of injury associated with a moderate muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.  A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles.  Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements.  Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups as well as indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side.  Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3).

The type of injury associated with a severe muscle disability is a through and through or deep penetrating due to high velocity missile, or large or multiple low velocity muscles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  A history with regard to this type of injury should include hospitalization for a prolonged period for treatment of wound and a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and if present, evidence of inability to keep up with work requirements.  Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track.  Palpation should show loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles should swell and harden abnormally in contraction.  Tests of strength, endurance, or coordinate 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: x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile; 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or, induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

As held by the Court, the criteria for evaluating muscle injuries under 38 C.F.R. § 4.56 involves a "totality-of-the-circumstances test" with no single fact controlling the outcome of determination. Tropf v. Nicholson, 20 Vet. App. 317, 324-25 (2006) (Tropf II).  In Robertson v. Brown, 5 Vet. App. 70 (1993), the Court held that a history of debridement did not mandate a specific rating under 38 C.F.R. § 4.56 absent evidence of symptomatic disability.  Similarly, in Tropf II, the Court held that the presence of retained metal fragments in muscle that was essentially asymptomatic did not entitle a claimant to a “moderate” compensable rating under 38 C.F.R. § 4.56 as a matter of law.  Tropf II, 20 Vet. App. at 324-25.

Upon review of the evidence, a separate 10 percent rating, but no higher, is warranted for a “moderate” muscle injury to Muscle Groups VII and VIII for the Veteran’s left wrist.  38 C.F.R. §§ 4.56(d)(2), 4.7.  That is, under Diagnostic Code 5307 or 5308, “moderate” muscle disability, indicative of a 10 percent rating, is shown by consistent complaints of one or more of the cardinal signs and symptoms of muscle disability.  See 38 C.F.R. § 4.56(d)(2)(ii)-(iii).  Overall, the Veteran is credible in his description of weakness and loss of power and fatigue and pain in the left wrist muscle area.  VA examinations dated September 2015, March 2017, June 2017, and October 2019 confirm these cardinal signs and symptoms of muscle disability.  This evidence warrants a separate 10 percent rating, as the Veteran has fatigue, weakness, pain, and loss of power that is consistent with a “moderate” disability of his muscles.  Id.  

Since the joint and muscle groups affect different functions, VA can rate the left wrist joint and muscle groups separately in this instance.  The weakness per the VA examiners emanates from the muscles, not from the left wrist joint.  In short, the Board has determined that medical and lay evidence of record reveals separate and distinct symptomatology for his left wrist joint and muscle, which would entitle the Veteran to a separate 10 percent rating for a muscle injury under Diagnostic Code 5307.  Esteban, 6 Vet. App. at 262.  Some of the symptomatology discussed above for the joint vs. the muscles is not duplicative or overlapping.  Thus, separate ratings can be established for both the left wrist joint and muscle disabilities.  

However, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for a left wrist muscle injury because he does not have a “moderately severe” or “severe” muscle disability.  38 C.F.R. § 4.56(d)(3)-(4).  In making this determination, the Board has considered the entire history of the muscle injury.  In this regard, STRs do not document a through and through or deep penetrating wound.  With regard to lay evidence, the Veteran and friends and family report that he has difficulty gripping or lifting various objects.  He wears a wrist splint / brace for the pain.  He cannot do artistic paintings or martial arts anymore.  He uses his right hand instead of his left for most functional activities.  The Veteran felt he was losing muscle mass and was developing muscle atrophy.  

The September 2015 VA examiner performed multiple joint and muscle examinations for the left wrist.  The VA examiner determined the Veteran had a “non-penetrating muscle injury.”  Upon examination, his strength for left wrist flexion and left extension was 4/5.  This comported to Muscle Groups VII and VIII.  There was no muscle atrophy seen.  The Veteran exhibited muscle weakness and had decreased grip for his left hand.  According to the September 2015 VA peripheral nerves examination, there were no trophic changes either.  At a March 2017 VA wrist examination, the Veteran reported wearing a wrist splint for support.  He is still able to make a fist but has constant pain.  Due to reduced strength in the left wrist (3/5 and 4/5 strength), the VA examiner remarked that most weight bearing activities to the upper extremities have to be accomplished by his right arm / hand.  The March 2017 VA wrist examination observed muscle atrophy between certain metacarpals, but the June 2017 VA elbow and forearm examiner clarified this atrophy was not related to the service-connected distal ulna condition.  The October 2019 VA wrist examination concluded there was reduced strength in the left wrist muscle.   

The Board has considered whether more than one 10 percent rating can be awarded for both Muscle Groups VII and VIII under Diagnostic Codes 5307 and 5308.  It is undisputed that Muscle Groups VII and VIII are both affected by his service-connected left wrist injury.  In this regard, for compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint(s), the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.  38 C.F.R. § 4.55(e). 

In the present case, this provision is not applicable, however.  Although Muscle Groups VII and VIII are in the same anatomical region (the forearm and hand), they act on the same joints (the left wrist and fingers).  They do not act on different joints.  Thus, by law, the Veteran is not entitled to separate 10 percent ratings for Muscle Group VII and VIII under both Diagnostic Codes 5307 and 5308 for his left wrist injury under 38 C.F.R. § 4.55(e).  This would constitute pyramiding, which is barred under the provisions of 38 C.F.R. § 4.14.  Rather, the single 10 percent evaluation for his muscle injury is combined and applies to both muscle groups.   

Accordingly, the Board concludes that a separate, additional 10 percent rating, but no greater, is warranted for the Veteran’s muscle weakness of the left wrist, associated with his service-connected left wrist disability.  38 C.F.R. § 4.3.  

Finally, with regard to the muscle injury of the left wrist, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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).  

REASONS FOR REMAND

1. Service connection for a separate bilateral eye disorder (glaucoma, cataracts, and pseudophakia) as secondary to service-connected disabilities (hypertension, type II diabetes mellitus, and kidney disease), is REMANDED. 

First, the Board cannot make a fully-informed decision on the issue of secondary service connection for a separate bilateral eye disorder (glaucoma, cataracts, and pseudophakia).  For the reason that no VA examiner has opined whether any of these separate eye disorders are proximately due to or aggravated beyond their natural progression by his other service-connected eye disabilities.  The issue of secondary service connection for his additional eye disorders was reasonably raised by the record.  See 38 C.F.R. §§ 3.159(c)(4)(i)(C), 3.310. 

Second, as the appeal is already being remanded for further development (as explained above and below), the Board sees the Veteran’s VA treatment records on file for the VA Medical Center (VAMC) in Topeka, Kansas date to December 2019.  Any additional VA treatment records are within VA’s constructive possession and are considered potentially relevant to the remaining issues on appeal.  Therefore, a remand is required to allow VA to obtain all the Veteran’s VA treatment records from the VAMC in Topeka, Kansas, dated December 2019 to the present.  

2. SMC based on the need for regular aid and attendance under 38 U.S.C. § 1114(l) or by reason of being housebound under 38 U.S.C. § 1114(s) is REMANDED.

A remand is required for the AOJ to secure a more current VA examination to determine if the Veteran satisfies the SMC criteria based on the necessity for the regular aid and attendance of another person under 38 U.S.C. § 1114(l).  In the present case, the Veteran has not yet been provided with a VA aid and attendance examination.  Therefore, a VA aid and attendance examination is necessary to determine whether service-connected disabilities cause the Veteran to be helpless or so nearly helpless as to require the regular aid and attendance of another person.  38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a).   

3. Additional SMC based on the need for regular aid and attendance for the Veteran’s spouse, R.M., under 38 U.S.C. § 1115 is REMANDED.

A remand is required for the AOJ to secure a more current VA examination to determine if the Veteran’s spouse, R.M., satisfies the SMC criteria based on the necessity for the regular aid and attendance of another person under 38 U.S.C. § 1115.  See also 38 C.F.R. §§ 3.351(a)(2), (b)-(c), 3.352(a).  In the present case, the Veteran’s spouse, R.M., has not yet been provided with a VA aid and attendance examination.  

4. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.29 for an unidentified hospitalization over 21 days for an unidentified disorder, is REMANDED. 

Under 38 C.F.R. § 4.29 (2020), a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or has required  hospital observation at VA expense for a service-connected disability for more than 21 days.  

A remand is required for the AOJ to seek clarification from the Veteran of the service-connected disabilities for which he was hospitalized for, what surgery he underwent (if any), and the specific time periods for these hospitalizations and / or surgeries at a VA facility or at VA expense.  At present, this information is unclear from a review of the Veteran’s lay statements and from a review of the record as a whole, making proper adjudication of this claim quite challenging.   

5. Entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following on an unidentified hospitalization for an unidentified disorder is REMANDED.

A temporary total rating (100 percent) will be assigned when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30(a)(1), (2), and (3) (2020).

A remand is required for the AOJ to seek clarification from the Veteran of the service-connected disabilities for which he underwent surgery (or immobilization by cast without surgery), the specific time periods for these surgeries and convalescence, and the name and location of the hospitals or medical facilities in question.  At present, this information is unclear from a review of the Veteran’s lay statements and from a review of the record as a whole, making proper adjudication of this claim quite challenging.   

6. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is REMANDED.

The TDIU issue is inextricably intertwined with the implementation of the awards of service connection and secondary service connection for the various disabilities granted in the present Board decision.  That is, since the Board in the present decision has granted service connection and secondary service connection for eight separate disorders, the AOJ’s assignment of a disability rating and effective date for these awards will impact the adjudication of the TDIU claim.  See 38 C.F.R. § 4.16(a) (2020).  For this reason, the implementation of these awards by the AOJ must be resolved prior to resolution of the claim for TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).  Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined claims.  

7. Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is REMANDED. 

Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis (ALS); or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips.  38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.808, 17.156 (emphasis added).  

The automobile / adaptive equipment claim on appeal for loss of use of both lower extremities is inextricably intertwined with the SMC claim already being remanded in the present decision.  That is, if the SMC claim based on loss or loss of use of both feet or blindness in both eyes is granted by the AOJ, this may directly impact the adjudication of various ancillary benefit claims, such as automobile / adaptive equipment.  See 38 C.F.R. §§ 3.350(b), 3.808 (2020).  For this reason, the issue of entitlement to SMC under the provisions of 38 U.S.C. § 1114(l), which is being remanded in the present case, must be resolved prior to resolution of the claim for automobile / adaptive equipment.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined SMC under 38 U.S.C. § 1114(l) and automobile / adaptive equipment issues.  

Therefore, the above issues are REMANDED for the following action:

1. The AOJ should obtain the Veteran’s VA treatment records from the VAMC in Topeka, Kansas dated from December 2019 to the present and associate them with the claims file.  

2. Regarding the Veteran’s temporary total rating claims under the provisions of 38 C.F.R. §§ 4.29 and 4.30, the AOJ should ask the Veteran to clarify what service-connected disabilities he was hospitalized for; what surgery(ies) he underwent (if any) (or immobilization by cast without surgery); what is the specific time periods for these hospitalizations or surgeries or convalescence; and what is the name and location of the hospitals or medical facilities in question.   

(At present, this information is unclear from a review of the Veteran’s lay statements and from a review of the record as a whole).   

3. After completion of step 1, the AOJ should schedule the Veteran for a VA eye / vision examination for his diagnosed eye disabilities.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the eyes).  

The VA examiner is asked to provide a response to the following:

(a) Is any current glaucoma, cataracts, or pseudophakia of the eyes “at least as likely as not” (i.e., 50 percent or more probable) proximately due to his service-connected bilateral eye diabetic retinopathy, bilateral eye hypertensive retinopathy, left eye traction retinal attachment with vitreous hemorrhage, or right eye maculopathy?  

(b) Is any current glaucoma, cataracts, or pseudophakia of the eyes “at least as likely as not” (i.e., 50 percent or more probable) aggravated by, i.e., worsened beyond its natural progression by his service-connected bilateral eye diabetic retinopathy, bilateral eye hypertensive retinopathy, left eye traction retinal attachment with vitreous hemorrhage, or right eye maculopathy?  The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale.  That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate.  For example, a disability can theoretically aggravate another disorder, even if it did not cause it. 

(c) In rendering the above opinions for the eyes, the VA examiner is advised of the following evidence:

A December 2017 VA optometry note assessed a history of primary open end glaucoma in both eyes (since 2009); left eye cataract surgery in 2010; right eye cataract surgery in 2013; and pseudophakia.  There are also earlier VA optometry and ophthalmology notes and consults in the record, including those dated in November 2000, May 2002, October 2003, February 2004, and May 2004, among others. 

4. After completion of step 1, the AOJ should schedule the Veteran for a VA aid and attendance examination to determine whether his service-connected disabilities cause the Veteran to be helpless or so nearly helpless as to require the regular aid and attendance of another person, or cause him to be blind in both eyes, or cause him to be permanently bedridden.  The appropriate Disability Benefits Questionnaire (DBQ) for the VA aid and attendance examination should be utilized.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person VA aid and attendance examination is not feasible).  

5. After completion of step 1, the AOJ should schedule the Veteran’s spouse, R.M., for a VA aid and attendance examination to determine whether her disabilities cause here to be helpless or so nearly helpless as to require the regular aid and attendance of another person or whether her disabilities cause her to be blind or in a nursing home.  The appropriate Disability Benefits Questionnaire (DBQ) for the VA aid and attendance examination should be utilized for the Veteran’s spouse, R.M.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion(s).  

(Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person VA aid and attendance examination is not feasible for the Veteran’s spouse, R.M.).  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.