Citation Nr: 21013414
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 16-60 247
DATE: March 9, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for lumbar degenerative disc disease L3-L4 (hereinafter back disability), prior to July 31, 2017, and in excess of 20 percent thereafter, is denied.

Entitlement to an initial rating in excess of 10 percent for left lumbar radiculopathy prior to July 31, 2017, and in excess of 20 percent thereafter, is denied.

Entitlement to an initial compensable rating for left hip sacroiliac stress fracture with residual pain, limitation of flexion (left hip limitation of flexion), is denied. 

Entitlement to an initial rating in excess of 10 percent for left hip sacroiliac stress fracture with residual pain, impairment of the hip (left hip impairment), is denied. 

Entitlement to an initial rating of 10 percent, and no higher, for metatarsal stress fracture, right foot (right foot disability), is granted. 

Entitlement to an initial compensable rating for constipation prior to August 14, 2020, is denied.

Entitlement to an initial rating of 10 percent, and no higher, for constipation from August 14, 2020, is granted.

Entitlement to an initial compensable rating for peripheral vestibular disorder prior to May 21, 2015, and in excess of 10 percent thereafter, is denied. 

Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified, with anxiety (depressive disorder), prior to May 19, 2016, a rating in excess of 50 percent from May 20, 2016, to July 22, 2020, and a rating in excess of 70 percent thereafter, is denied.

Entitlement to an initial rating of 50 percent, and no higher, for migraine headaches is granted. 

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. 

REMANDED

Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded.

Entitlement to an initial compensable rating for tibial plateau stress fracture and osteoporosis, left knee (left knee disability), prior to August 6, 2020, and a rating in excess of 10 percent thereafter, is remanded. 

Entitlement to an initial rating in excess of 10 percent for tibial plateau stress fracture and osteoporosis, right knee (right knee disability), is remanded. 

FINDINGS OF FACT

1. Prior to July 31, 2017, the appellant’s back disability was manifested by pain, inability to stand for more than 20 minutes or walk long distances, trouble bending and lifting, forward flexion greater than 60 degrees, and combined thoracolumbar range of motion greater than 120 degrees.  There was no abnormal gait or spinal contour.  Since July 31, 2017, the appellant’s back disability has been manifested by sharp and burning pain, stiffness, inability to walk, sit or, stand for extended periods, inability to complete daily chores or bend, lift, or carry things, and flexion to greater than 30 degrees.  At no point during the period on appeal has there been ankylosis.

2. Prior to July 31, 2017, the appellant’s left lumbar radiculopathy was manifested by symptoms approximating mild, and not moderate, incomplete paralysis.  Since July 31, 2017, the appellant’s left lumbar radiculopathy has been manifested by symptoms approximating moderate, and not moderately severe or severe, incomplete paralysis.  At no point was there involvement of more than one nerve group.

3. The appellant’s left hip flexion has not been limited to 45 degrees or less for any of the period on appeal.  Even during flare-ups and after repeated use over time, her left hip flexion is not limited to 45 degrees or less and does not manifest with symptoms approximating limitation of motion to 45 degrees or less.  The appellant’s painful motion of the left hip has been compensated in a separate 10 percent rating for limitation of extension throughout the period on appeal.

4. Throughout the period on appeal, the appellant’s left hip abduction was not limited such that motion was lost beyond 10 degrees, including during flare-ups or following repeated use over time.

5. Throughout the period on appeal, the appellant’s right foot disability has been manifested by pain and swelling, which limits her ability to walk and stand.  Such most nearly approximates moderate malunion or nonunion of the tarsal or metatarsal bones.  There was not moderately severe or severe malunion or nonunion and there was no actual loss of use of the right foot. 

6. Prior to August 14, 2020, the appellant’s constipation was mild in severity and there were not frequent episodes of bowel disturbance with abdominal distress.  

7. Since August 14, 2020, the appellant’s constipation has been moderate in severity, with frequent episodes of bowel disturbance with abdominal distress.  There have not been severe symptoms with more or less constant abdominal distress at any point during the period on appeal.

8. Prior to May 21, 2015, while the appellant reported subjective dizziness and vertigo in connection with her peripheral vestibular disorder, there were no objective findings of vestibular disequilibrium.  From May 21, 2015, the appellant has experienced dizziness but has not experienced occasional staggering. 

9. Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified, with anxiety (hereinafter depressive disorder), prior to May 19, 2016, a rating in excess of 50 percent from May 20, 2016, to July 22, 2020, and a rating in excess of 70 percent thereafter, is remanded.

10. The evidence is in relative equipoise as to whether the appellant’s migraine headaches caused very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability, throughout the period on appeal. 

11. The evidence is in relative equipoise as to whether the appellant’s service-connected disabilities render her unable to secure or follow a substantially gainful occupation, throughout the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 10 percent for back disability prior to July 31, 2017, and in excess of 20 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5243.

2. The criteria for entitlement to an initial rating in excess of 10 percent for left lumbar radiculopathy prior to July 31, 2017, and a rating in excess of 20 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, DCs 8520, 8526.

3. The criteria for entitlement to an initial compensable rating for limitation of flexion of the left hip have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, DC 5252.

4. The criteria for entitlement to an initial rating in excess of 10 percent for left hip impairment have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253.

5. The criteria for entitlement to an initial rating of 10 percent, and no higher, for right foot disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5283.

6. The criteria for entitlement to an initial compensable rating for constipation prior to August 14, 2020, have not been met.  38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 4.114, DC 7399-7319.  

7. The criteria for entitlement to an initial rating of 10 percent, and no higher, for constipation from August 14, 2020, have been met.  38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 4.114, DC 7399-7319.  

8. The criteria for entitlement to an initial compensable rating for peripheral vestibular disorder prior to May 21, 2015, and a rating in excess of 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, DC 6204.

9. The criteria for entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, a rating in excess of 50 percent from May 20, 2016, to July 22, 2020, and a rating in excess of 70 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9434.

10. The criteria for an initial rating of 50 percent, and no higher, for migraine headaches have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, DC 8100. 

11. The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty from October 2012 to April 2013.

This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

A January 2014 rating decision, in pertinent part, awarded entitlement to service connection for (1) depressive disorder and assigned an initial 30 percent rating, effective April 27, 2013; (2) left hip impairment and assigned an initial 10 percent rating, effective April 27, 2013; (3) back disability and assigned an initial 10 percent rating, effective April 27, 2013; (4) right knee disability and assigned an initial 10 percent rating, effective April 27, 2013; (5) vestibular disorder and assigned an initial noncompensable rating, effective April 27, 2013; (6) right foot disability and assigned an initial noncompensable rating, effective April 27, 2013; (7) left knee disability and assigned an initial noncompensable rating, effective April 27, 2013; and (8) left hip limitation of flexion and assigned an initial noncompensable rating, effective April 27, 2013.

An August 2016 rating decision, in pertinent part, awarded entitlement to service connection for migraine headaches and assigned an initial 30 percent rating, effective April 27, 2013.

A second August 2016 rating decision, in pertinent part, awarded entitlement to service connection for constipation and assigned an initial noncompensable rating, effective September 30, 2014.

A September 2016 rating decision, in pertinent part, denied entitlement to service connection for GERD.

A second September 2016 rating decision, in pertinent part, awarded entitlement to service connection for left lumbar radiculopathy and assigned an initial 10 percent rating, effective May 6, 2016.

The first August 2016 rating decision also increased the rating of depressive disorder to 50 percent, effective May 19, 2016.  The second September 2016 rating decision, inter alia, increased the rating of peripheral vestibular disorder to 10 percent, effective May 21, 2015.  An April 2018 rating decision increased the ratings of lumbar degenerative disc disease to 20 percent, effective July 31, 2017, and left lumbar radiculopathy to 20 percent, effective July 31, 2017.  These issues remain in appellate status, as the maximum schedular ratings were not assigned for the entire period on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The appellant was afforded an informal conference before a Decision Review Officer (DRO) in May 2017.  A summary is of record.

In October 2018, the Board, in pertinent part, remanded the matter.

Statements of the Case were issued in July 2020 which addressed entitlement to service connection for GERD and an initial rating in excess of 30 percent for migraine headaches, respectively.  See Manlincon v. West, 12 Vet. App. 238 (1999).  A timely substantive appeal regarding these issues was received in August 2020.

A September 2020 rating decision, in pertinent part, increased the initial evaluation of depressive disorder to 70 percent, effective July 23, 2020, increased the initial evaluation of left tibial plateau stress fracture and osteoporosis to 10 percent, effective August 6, 2020.  AB, supra.

A Supplemental Statement of the Case (SSOC) was issued in September 2020.

Finally, the Board observes that a February 2021 higher-level review rating decision denied entitlement to a 70 percent rating for depressive disorder prior to July 23, 2020, based upon a November 2020 request for higher-level review of the effective date assigned for depressive disorder in the September 2020 rating decision.  AB, supra.  See November 2020 VA Form 20-0996 Decision Review Request: Higher-Level Review.

For reasons unclear to the Board, the RO issued this February 2021 rating decision even though the issue of entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, a rating in excess of 50 percent from May 20, 2016, to July 22, 2020, and a rating in excess of 70 percent thereafter, had been returned to the Board in the legacy appeals system, and includes the issue of whether a 70 percent rating is warranted prior to July 23, 2020.  In any event, the issue of entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, a rating in excess of 50 percent from May 20, 2016, to July 22, 2020, and a rating in excess of 70 percent thereafter, is discussed below.

Initial Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous. . . .”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found.  Id.

Regulation Changes

In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change.  See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).  

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, such are not relevant to the claims being adjudicated at this time.  

Regarding the appellant’s back disability, although she was diagnosed with intervertebral disc syndrome (IVDS) and the diagnostic code for such (5243) was changed, this change is not relevant to instant matter, as detailed below, there is no indication or contention that the appellant was prescribed bed rest by a physician during the period on appeal.  

The diagnostic codes applicable to the appellant’s left hip disability were not changed.  As noted below, because there is no indication or contention that the appellant experienced impairment of the femur, the changes to Diagnostic Code (DC) 5255 are not relevant.  

While a new diagnostic code, 5269, was added for plantar fasciitis, the appellant’s right foot disability is of the metatarsal and there is no plantar fasciitis.  Thus, the change is not relevant.   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).

Examination Adequacy

The Board notes that the appellant complained in November 2016 that her recent 2016 VA examinations were inadequate because the examiners did not record measurements as she described them and did not use any instruments or look at her during the examinations.  However, the May and August 2016 VA back and hip examination reports include results of range of motion testing in degrees.  

Applicable regulations direct that accurate measurements should be insisted on, and that the use of a goniometer in the measurement of limitation of motion is indispensable in examinations.  38 C.F.R. § 4.46.

In part due to the appellant’s complaints regarding the quality of her examinations, the DRO directed in May 2017 that she be afforded new examinations.

However, the Board has reviewed the reports of the May 2016 hip and thigh and  August 2016 back examinations and observes that range of motion findings were indeed reported in detail, in accordance with the instructions provided to the examiner on the Disability Benefits Questionnaire (DBQ), which state that range of motion is to be measured with a goniometer and each measurement should be rounded to the nearest 5 degrees.  The examiner also recorded the appellant’s reports that regarding her symptoms and the frequency and severity thereof.

The Board finds that the range of motion findings obtained in the May 2016 and August 2016 examination reports obtained are adequate.  The examinations were conducted by qualified medical professionals.  Moreover, the examiners’ opinions and findings are predicated on both an examination of the appellant and the appellant’s reports of symptomatology.  The examination reports are adequate for rating purposes because it reports range of motion testing in degrees and provides adequate information upon which to determine the level of disability.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Massey v. Brown, 7 Vet. App. 204 (1994).  

Further, such reports do not conflict with the other medical evidence of record.  In that regard, if the Board were to afford such examination reports no probative weight and rate the appellant’s disabilities upon the remaining evidence of record, there would be no change to the outcome.

 

Back disability with Left Lumbar Radiculopathy

For the reasons that follow, the Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 10 percent for back disability prior to July 31, 2017, and a rating in excess of 20 percent thereafter, is not warranted, and that entitlement to an initial rating in excess of 10 percent for left lumbar radiculopathy prior to July 31, 2017, and in excess of 20 percent thereafter, is also not warranted.

The appellant’s lumbar spine disability is rated under 38 C.F.R. §§ 4.71a, DC 5237 (lumbosacral strain), which permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.  38 C.F.R. § 4.71a.  As noted above, because the appellant has not been prescribed bedrest for her IVDS, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the recent changes to DC 5243 effective February 7, 2021, are inapplicable.

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.  A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

The appellant’s left lumbar radiculopathy is currently rated under DC 8526.  DC 8526 provides criteria for rating injuries to the anterior crural nerve (femoral).  Under those criteria, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 30 percent rating is assigned when there is severe incomplete paralysis; and a maximum 40 percent rating is assigned when there is evidence of complete paralysis of the quadriceps extensor muscles.  38 C.F.R. § 4.124a, DC 8526.

Diagnostic Code 8520 pertains to injuries to the sciatic nerve.  Under these rating criteria, an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  A 40 percent rating is warranted for moderately severe incomplete paralysis.  A 20 percent rating is warranted for moderate incomplete paralysis.  A 10 percent rating is warranted for mild incomplete paralysis.  38 C.F.R. § 4.124a, DC 8520.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

There are five nerve branches in the lower extremities.  Each branch has its separate and distinct functions.  The sciatic branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves.  The femoral branch includes the anterior crural (femoral) and the internal saphenous nerves.  The obturator, external cutaneous thigh, and illio-inguinal nerve branches only include one nerve each. The words “mild,” “moderate,” and “severe” are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  See 38 C.F.R. § 4.6.  The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  See 38 C.F.R. § 4.124a, DCs 8510-8730.

The appellant was afforded a VA back examination in September 2013.  The claims file was reviewed.  The appellant stated that left lower back and hip pain began when performing exercises.  She denied irradiation to the legs, numbness, cramps, sphincter problems, traumas, and falls.  The appellant used tramadol as needed.  Flare-ups were denied.  Range of motion testing revealed flexion to 85 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees.  There was pain on each range of motion.  Following repetitive-use testing, range of motion testing revealed flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 15 degrees.  Functional loss or impairment was present in the form of less movement than normal and pain on movement.  There was localized tenderness or pain to palpation of the left sacroiliac joint.  There was no guarding or muscle spasm.  Muscle strength was normal and there was no atrophy.  Deep tendon reflexes and sensory examination were normal bilaterally.  Straight leg raise was negative bilaterally and there was no radiculopathy.  There were no other neurologic abnormalities or findings.  The appellant did not have intervertebral disc syndrome (IVDS) and she did not use any assistive devices.  Imaging studies were negative for arthritis or vertebral fracture.  Imaging studies revealed a normal thoracic spine, incomplete stress fracture of the left sacral ala extending to the sacroiliac joint, and mild degenerative disc disease at L3-L4.  With respect to functional impact, it was noted that the appellant was pending for a reasonable accomodation at her job as a teller.  There were no muscle aches during the examination.

October 15, 2014, range of motion testing of the thoracolumbar spine was performed at San Patricio Physical Rehabilitation Center.  Active testing revealed flexion to 23 degrees, extension to 12 degrees, left lateral flexion to 8 degrees, right lateral flexion to 13 degrees, left lateral rotation to 7 degrees, and right lateral rotation to 10 degrees.  Passive testing revealed flexion to 33 degrees, extension to 15 degrees, left lateral flexion to 10 degrees, right lateral flexion to 15 degrees, left lateral rotation to 7 degrees, and right lateral rotation to 10 degrees.  Following repetitions, flexion and extension decreased, left lateral flexion improved, and the remainder stayed the same.

The appellant was afforded a VA back examination in August 2016.  The claims file was reviewed.  The appellant reported constant low back pain and denied flare-ups.  Regarding functional impairment or loss, the appellant reported that she cannot stand for more than 20 minutes, has trouble bending and lifting, and cannot walk a long distance.  Range of motion testing revealed flexion to 90 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 30 degrees each.  Range of motion itself contributed to a functional loss in that there was difficulty performing motions which required full range of motion.  However, there was no evidence of pain on examination, nor was there localized tenderness or pain to palpation.  There was no additional limitation of motion following repetitive-use testing.  Following repetitive use over time, the appellant would experience significant limitation of functional ability due to pain.  However, there would be no additional reduction in range of motion.  Muscle strength was full, there was no atrophy, reflexes were normal, sensory examination was normal, and straight leg raise was negative bilaterally.  There was radiculopathy of the left lower extremity with involvement of the femoral nerve.  There was mild, intermittent pain, and there were mild paresthesias and/or dysesthesias.  The VA examiner opined that the appellant’s left lower extremity radiculopathy was mild in severity.  There was no ankylosis of the spine.  There were no other neurologic abnormalities.  While the appellant had IVDS, she had not had any episodes of acute signs and symptoms due to IVDS which required prescribed bedrest in the past 12 months.  No assistive devices were used.  Imaging studies were negative for arthritis, although there was mild spinal canal narrowing due to central disc herniation at L3-L4.  Regarding functional impact, the appellant would have trouble bending, lifting, and standing for long periods.

The appellant was afforded a VA back examination in July 2017.  The claims file was reviewed.  The appellant continued to complain of severe low back pain with radiation to the left lower extremity.  Flare-ups were endorsed in the form of severe low back pain.  Regarding functional loss or impairment, the appellant endorsed difficulty bending over.  Range of motion testing revealed flexion to 50 degrees, extension to 10 degrees, and right and left lateral flexion and right and left lateral rotation to 15 degrees each.  Range of motion itself contributed to a functional loss in that the appellant had difficulty bending over.  There was pain on all ranges of motion but it did not cause functional loss.  There was evidence of pain with weight-bearing.  There was paravertebral muscle tenderness.  There was no additional limitation of motion following repetitive-use testing.  Pain would significantly limit range of motion following repeated use over time and during flare-ups but the VA examiner could not describe such in terms of motion without resorting to speculation because the examination was not conducted under those conditions.  There was lumbar spasm and guarding due to the low back disability, but such did not result in abnormal gait or abnormal spinal contour.  There were no additional contributing factors of disability.  Muscle strength was full and there was no atrophy.  Reflexes were normal, sensation was decreased on the left lower leg/ankle (L4/L5/S1) and left foot/toes (L5), but otherwise normal.  Straight leg raise was negative for the right and positive for the left.  The appellant’s left lower extremity had sciatic nerve involvement with moderate constant pain and moderate numbness.  The examiner opined that the appellant’s radiculopathy was moderate in severity.  There was no ankylosis and there were no other neurologic abnormalities.  The appellant did not have IVDS and did not use assistive devices.  There was no functional impact.  There was evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing.  

The appellant was afforded a contracted peripheral nerves examination in August 2020.  The claims file was reviewed.  The appellant complained of radiating pain from the back.  Symptoms included moderate constant pain and mild paresthesias and/or dysesthesias of the left lower extremity.  Muscle strength was 4/5 for right knee extension but otherwise normal.  There was no atrophy.  Reflexes were normal bilaterally.  Sensory examination was decreased for left lower leg/ankle (L4/L5/S1) and left foot/toes (L/5) but otherwise normal.  There were no trophic changes and gait was normal.  Special tests for median nerve evaluation were not indicated.  The examiner opined that the appellant’s left lower extremity radiculopathy of the sciatic nerve was moderate in severity.  No assistive devices were used.  Amputation with prosthesis would not equally serve the appellant.  There was no functional impact.

The appellant was afforded a contracted back examination in August 2020.  The claims file was reviewed.  The appellant endorsed constant back pain which felt sharp and burning.  She had used physical therapy, aqua therapy, chiropractor, TENS unit, and pain medication.  Current symptoms included constant sharp pain, which radiated down the leg, and stiffness over the spine.  The appellant endorsed daily flare-ups of the back, moderate in severity.  She also reported that back flare-ups last days to weeks.  Such are precipitated by activity and movements like prolonged sitting, standing, walking, bending, twisting, and lifting.  Flare-ups were alleviated by rest, medication, therapy, and ER visits for injections.  Functional impairment/loss was endorsed in the form of an inability to complete regular, daily chores due to pain, inability to walk or sit for long periods, inability to stand more than 25 minutes, and inability to bend, lift, or carry things.  Range of motion testing revealed flexion to 50 degrees, extension to 10 degrees, and right and left lateral flexion and right and left lateral rotation to 15 degrees each.  Range of motion itself did not contribute to a functional loss.  There was pain on all ranges of motion, pain caused functional loss, an there was pain with weight-bearing.  There was localized tenderness or pain to palpation of the paraspinous muscles and such was moderate in severity.  There was no additional limitation of motion following repetitive-use testing.  Pain would significantly limit functional ability with repeated use over time and also during flare-ups.  During these periods, range of motion would be limited to 45 degrees of flexion and 10 degrees of extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation each.  Guarding and muscle spasms were present but neither resulted in abnormal gait or abnormal spinal contour.  Additional factors contributing to disability included interference with sitting and standing.  Muscle strength was 4/5 for right knee extension and left hip flexion, but otherwise normal.  There was no atrophy.  Deep tendon reflexes were decreased for the left lower leg/ankle (L4/L5/S1) and left foot/toes (L5), but otherwise normal.  Straight leg raise was negative for the right and positive for the left.  The appellant did not have ankylosis.  There were no other neurologic abnormalities.  The appellant had IVDS but had not been prescribed bed rest.  No assistive devices were used.  With respect to functional impact, the appellant was unable to perform at her job due to pain.  She could not sit, stand, walk, bend, or lift objects due to pain.

Applying the facts to the criteria set forth above, the Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 10 percent for back disability prior to July 31, 2017, and a rating in excess of 20 percent thereafter, is not warranted.

Prior to July 31, 2017, the most probative evidence establishes that the appellant’s back disability was manifested by pain, inability to stand for more than 20 minutes or walk long distances, trouble bending and lifting, forward flexion greater than 60 degrees, and combined thoracolumbar range of motion greater than 120 degrees.  There was no abnormal gait or spinal contour.  There was no ankylosis; rather, the appellant retained range of motion of the spine.

The Board observes that the October 15, 2014, physical therapy records record, inter alia, active flexion limited to 23 degrees, passive flexion limited to 33 degrees combined active range of motion limited to 73 degrees, and combined passive range of motion limited to 90 degrees.  While forward flexion of the thoracolumbar spine limited to 30 degrees or less warrants a 40 percent rating, and combined thoracolumbar range of motion limited to 120 degrees or less warrants a 20 percent rating, under the General Rating Formula for Diseases and Injuries of the Spine, the vast majority of the lay and medical evidence of record reveals that functional impairment of the thoracolumbar spine prior to July 31, 2017, is nowhere near as severe as the physical therapy records suggest.

Rather, forward flexion was full at 90 degrees in August 2016 and limited to 85 degrees in September 2013, a reduction of only five degrees from full range of motion.  Indeed, these October 2014 results are a major outlier from the results of these two compensation and pension examinations.  

Even assuming that the results of the October 2014 physical therapy range of motion testing indeed accurately recorded the appellant’s level of disability on October 15, 2014, to assign a higher rating for this discrete period would violate the rule regarding stabilization of ratings.  38 C.F.R. § 4.14.

Since July 31, 2017, the appellant’s back disability has been manifested by, at worst, sharp and burning pain, stiffness, inability to walk, sit or, stand for extended periods, inability to complete daily chores or bend, lift, or carry things, and flexion to greater than 30 degrees.  There was no ankylosis; rather, the appellant retained range of motion of the spine.

During flare-ups and with repeated use over time, the appellant experienced additional limitations due to pain; however, the severity and frequency does not more nearly approximate the severity contemplated by 40 percent rating.  Rather, the August 2020 examiner explained that, even during the appellant’s reported daily flare-ups or with repeated use over time, forward flexion was not limited to 30 degrees or less, rather, it would be 45 degrees under such conditions.  While there was guarding and spasm, such did not result in abnormal gait or spinal contour.

Applying the facts to the criteria set forth above, the Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 10 percent for left lumbar radiculopathy prior to July 31, 2017, and in excess of 20 percent thereafter, is also not warranted.

The Board observes that the effective date of the award of service connection for left lumbar radiculopathy is May 6, 2016, while the effective date of the award of service connection for back disability is April 27, 2013.  The appellant has not expressed disagreement with the effective date of May 6, 2016.  However, to the extent that such is part and parcel of the initial increased rating claim for the back disability, entitlement to a separate compensable rating for left lumbar radiculopathy prior to May 6, 2016, is not warranted because there is no competent evidence, nor is it asserted, that the appellant had radicular symptoms prior to that date.  Rather, the appellant herself denied radiating pain in September 2013 and examination at that time was negative for radicular symptoms.

The August 2016 examiner’s statement that the appellant’s left lumbar radiculopathy affected only the femoral nerve appears to have been in error.  No other clinician determined that there was any femoral nerve involvement.  Rather, the July 2017 and August 2020 examiners determined that the only radicular involvement was with the sciatic nerve.  In any event, even if there was femoral nerve involvement at the time of the August 2016 examination, there was not sciatic nerve involvement at such time.  And there was no femoral nerve involvement at the times of the July 2017 and August 2020 examinations.  Further, both DCs 8520 and 8526 direct that a 10 percent rating be awarded for mild incomplete paralysis and a 20 percent rating be awarded for moderate incomplete paralysis.  Thus, as there is no indication that there was involvement of more than one nerve branch at any time, there is no need to disturb the left lumbar radiculopathy rating under DC 8526 currently in effect, or to award a separate compensable rating for involvement of a second nerve.

Prior to July 31, 2017, the appellant’s left lumbar radiculopathy was manifested by no worse than mild incomplete paralysis of the femoral or sciatic nerve.  There was no reduction in muscle strength, there was no atrophy, reflexes were normal, sensory examination was normal, and straight leg raise was normal.  The appellant experienced mild, intermittent pain and mild paresthesias and/or dysesthesias.  No examiner described such as greater than mild in severity during this period.

Since July 31, 2017, the appellant’s left lumbar radiculopathy has been manifested by no worse than moderate incomplete paralysis of the sciatic nerve.  The appellant experienced moderate constant pain and moderate numbness.  Muscle strength of the left lower extremity was full, save for left hip flexion at 4/5 during the August 2020 back examination.  Interestingly, left hip flexion strength was 5/5 during the August 2020 peripheral nerves examination.  At no point was there muscle atrophy.  While sensation was decreased on the left lower leg/ankle and the left foot/toes, it was never absent.  Reflexes were generally normal, although deep tendon reflexes of the left lower leg/ankle and left foot/toes was decreased during the August 2020 back examination but not during the August 2020 peripheral nerves examination.  No examiner described such as greater than moderate in severity during this period.

The Board finds that the severity and frequency of the appellant’s left lower extremity neurologic symptoms prior to July 31, 2017, more nearly approximated mild incomplete paralysis, and, since July 31, 2017, has more nearly approximated moderate incomplete paralysis.

As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Left Hip Limitation of Flexion and Left Hip Impairment

The Board finds that the most probative evidence establishes that entitlement to an initial compensable rating for left hip limitation of flexion is not warranted for any portion of the period on appeal and that entitlement to an initial rating in excess of 10 percent for left hip impairment is not warranted for any portion of the period on appeal.

The Board observes that a separate initial 10 percent rating for left hip limitation of extension, effective April 27, 2013, was awarded in the January 2014 rating decision.  In October 2018, the Board denied entitlement to an initial rating in excess of 10 percent for left hip limitation of extension.  See 38 C.F.R. § 4.71a, DC 5251 (10 percent maximum schedular rating).  The issues of entitlement to an initial compensable rating for left hip limitation of flexion and an initial rating in excess of 10 percent for left hip impairment return to the Board.

Disorders of the hips are rated under DCs 5250 through 5255 of 38 C.F.R. § 4.71a.  Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

DC 5252 pertains to limitation of flexion of the thigh.  A 10 percent rating is assigned for flexion limited to 45 degrees.  A 20 percent rating is assigned for flexion limited to 30 degrees.  A 30 percent rating is assigned for flexion limited to 20 degrees.  A maximum 40 percent rating is assigned for flexion limited to 10 degrees.

DC 5253 pertains to impairment of the thigh.  A 10 percent rating is assigned for (a) limitation of rotation, such that one cannot toe-out more than 15 degrees, or (b) limitation of adduction such that one cannot cross legs.  A maximum 20 percent rating is assigned for limitation of abduction such that motion is lost beyond 10 degrees.

In May 2013, the appellant stated that she is unable to stand for more than 20 minutes without pain.  

Received in February 2015 was a January 2015 statement of the appellant, in which she asserted that she was unemployed because her disabilities precluded her from standing or sitting for any period of time.  Doctors have certified that she must live in a single-story home in order to avoid stairs and impact ot her lower extremities.  

Received in June 2015 was a January 2015 statement of the appellant’s spouse.  He stated that he had witnessed the appellant’s service-connected disabilities affect her daily life and have worsened.  

The appellant was afforded a VA hip and thigh examination in September 2013.  The claims file was reviewed.  The appellant described her left hip pain as stabbing and locking.  Such was a 6-7/10.  She was unable to walk with long steps.  Flare-ups were denied.  Range of motion testing revealed left hip flexion to 120 degrees and extension to greater than 5 degrees, both with pain.  Abduction was not lost beyond 10 degrees.  However, adduction was limited such that the appellant could not cross her legs.  However, rotation was not so limited that she could not toe-out more than 15 degrees.  Following repetitive-use testing, left flexion was limited to 115 degrees, but there was otherwise no additional limitation.  Functional loss/impairment was present in the form of less movement than normal and pain on movement.  There was localized tenderness or pain to palpation.  Muscle strength was full and there was no ankylosis.  There was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Imaging studies were negative for arthritis.  Regarding functional impact, the appellant was unable to lift or carry heavy bags of money at her job as a teller.

October 29, 2014, range of motion testing of the left hip was performed at San Patricio Physical Rehabilitation Center.  Active testing revealed flexion to 93 degrees, extension to 9 degrees, and abduction to 36 degrees.  Passive testing revealed flexion to 95 degrees, extension to 13 degrees, and abduction to 40 degrees.  Following repetitions, flexion improved while extension and abduction decreased.

The appellant was afforded a VA hip and thigh examination in May 2016.  The claims file was reviewed.  The appellant endorsed constant pain but denied flare-ups.  Range of motion testing revealed left hip flexion to 120 degrees, extension to 25 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees.  Range of motion itself did not contribute to a functional loss and there was no pain noted on exam.  There was no evidence of pain with weight-bearing and there was no localized tenderness, pain on palpation, or crepitus.  There was no additional limitation of motion following repetitive-use testing.  Pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time.  Muscle strength was full and there was no atrophy.  There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Regarding functional impact, the appellant could stand and walk for up to approximately 10 to 15 minutes and then would have to stop, rest, or change positions.  There was also difficulty with prolonged sitting.

The appellant was afforded a VA hip and thigh examination in July 2017.  The claims file was reviewed.  The appellant endorsed continuing severe left hip pain.  Flare-ups were endorsed in the form of severe pain.  Functional loss/impairment was present in the form of difficulty with prolonged walking.  Range of motion reveled flexion to 100 degrees, extension to 20 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation was to 30 degrees.  Adduction was not limited such that she could not cross her legs.  Range of motion itself does not contribute to a functional loss.  While pain was noted on flexion and extension, such did not cause functional loss.  There was also evidence of pain with weight-bearing, localized tenderness at the left hip, and crepitus.  There was no additional limitation of motion following repetitive-use testing.  Pain would significantly limit functional ability with repeated use over a period of time and during a flare-up.  However, without examining the appellant during such periods, the examiner could not describe such in terms of limitation of motion without resort to speculation.  There were no additional contributing factors of disability.  Muscle strength was normal and there was no atrophy.  There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  There was no functional impact.  The examiner noted that there was pain on passive range of motion testing and also when the joint was used in nonweight-bearing.

The appellant was afforded a contracted hip and thigh examination in August 2020.  The claims file was reviewed.  The appellant complained of constant sharp pain, burning and weakness, joint stiffness, and limping.  Current treatment included physical therapy, aqua therapy, and pain medications.  The appellant endorsed left hip flare-ups which occurred daily, were moderate to severe, and lasted for days.  They were precipitated by standing, sitting for too long, certain movements, walking, and driving.  Alleviating factors were rest and medications.  Range of motion testing revealed left flexion to 80 degrees, extension to 20 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees.  Adduction was not limited such that the appellant could not cross her legs.  Range of motion itself did not contribute to a functional loss.  Pain was noted on flexion, extension, and abduction, and also with weight-bearing, and pain caused functional loss.  There was moderate localized tenderness or pain on palpation of the anterior hip.  There was crepitus.  There was no additional limitation of motion following repetitive-use testing.  Pain would significantly limit functional ability following repeated use over time and during flare-ups.  In terms of range of motion during these instances, flexion would be to 70 degrees, extension to 10 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees.  Adduction would not be so limited that she could not cross her legs.  There were no additional contributing factors to disability.  Muscle strength was 4/5 on left flexion and extension, and full on abduction.  There was no atrophy.  There was no ankylosis.  There was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Regarding functional impact, the appellant would have difficulty walking, standing, and sitting for too long due to pain.  She would also have difficulty climbing stairs and driving.

Applying the facts to the criteria set forth above, the Board finds that entitlement to an initial compensable rating for left hip limitation of flexion and/or entitlement to an initial rating in excess of 10 percent for left hip impairment is not warranted.

In order to warrant a separate compensable rating for limitation of flexion of the thigh, flexion must be limited to at least 45 degrees.  As delineated above, the appellant’s left hip flexion has not been limited to 45 degrees or less at any point during the period on appeal.  Rather, left hip flexion has never been less than 80 degrees, even during flare-ups or following repeated use over time.  

The Board notes that the appellant is already being compensated for painful motion under the diagnostic code for limitation of extension.  The minimal compensable rating under both the diagnostic codes for limitation of extension and flexion is 10 percent.  38 C.F.R. § 4.71a, DCs 5251 and 5252.  Separate disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  As such, the appellant cannot be assigned separate compensable ratings under the diagnostic code for limitation of flexion due to the symptom of painful motion of the joint, as this would constitute impermissible pyramiding with the ratings assigned to compensate for painful motion under the diagnostic code for limitation of extension.  38 C.F.R. § 4.14.  

In order to warrant a rating in excess of 10 percent for impairment of the thigh, limitation of abduction with motion lost beyond 10 degrees is needed.  As delineated above, abduction has not been lost beyond 10 degrees at any point during the period on appeal, including during flare-ups or following repeated use over time.  

There is no indication, nor is it asserted, that the appellant has flail joint of the hip or any impairment of the femur.  Thus, Diagnostic Codes 5254 and 5255 are not applicable.

In sum, the most probative evidence establishes that an initial compensable rating for left hip limitation of flexion or an initial rating in excess of 10 percent for left hip impairment is not warranted for any portion of the period on appeal.  As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Right Foot Disability

The Board finds that the evidence is in relative equipoise as to whether an initial 10 percent rating, and no higher, is warranted for the appellant’s right foot disability.

The appellant’s right foot disability, diagnosed as metatarsal stress fracture, has been rated under DC 5283, which pertains to malunion or nonunion of the tarsal or metatarsal bones.  A 10 percent rating is warranted for moderate malunion or nonunion, a 20 percent rating is warranted if the malunion or nonunion is moderately severe, and a 30 percent rating is warranted if the malunion or nonunion is severe.  A note states that a 40 percent rating should be assigned with actual loss of use of the foot.  38 C.F.R. § 4.71a, DC 5283.

DC 5284 pertains to other foot injuries.  This diagnostic code directs that a 10 percent rating be awarded if such is moderate, a 20 percent rating be awarded if such is moderately severe, and a 30 percent rating if such is severe.  A note states that a 40 percent rating should be assigned with actual loss of use of the foot.  38 C.F.R. § 4.71a, DC 5284.

In May 2013, the appellant stated that she is unable to stand for more than 20 minutes without pain.  

Received in February 2015 was a January 2015 statement of the appellant, in which she asserted that she was unemployed because her disabilities precluded her from standing or sitting for any period of time.  Doctors have certified that she must live in a single-story home in order to avoid stairs and impact ot her lower extremities.  

Received in June 2015 was a January 2015 statement of the appellant’s spouse.  He stated that he had witnessed the appellant’s service-connected disabilities affect her daily life and have worsened.  

The appellant was afforded a VA foot examination in September 2013.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, right metatarsal stress fracture was diagnosed.  The appellant endorsed intermittent pain which made her unable to walk long distances, dance, or use high-heel shoes.  She did not have Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus (claw foot), malunion or nonunion of tarsal or metatarsal bones, other foot injuries, or bilateral weak foot.  Examination revealed tenderness to palpation of the right metatarsal area, full range of motion bilaterally, no swelling, and no edema.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Regarding functional impact, the appellant experienced pain from standing for long periods at work.  

The appellant was afforded a VA foot examination in August 2016.  The claims file was reviewed.  The appellant denied foot pain or flare-ups.  However, she described functional impairment from an inability to bend her foot because of pain.  Thus, the denial of foot pain appears to be a typographical error by the examiner.  She also had pain walking and climbing steps.  Examination revealed mild tenderness dorsum of the midfoot and pain with walking, climbing, and bending the foot.  The examiner opined that the appellant’s symptoms were mild in severity.  The foot condition chronically compromised weight bearing but did not require arch supports, custom orthotic inserts, or shoe modifications.  Pain on weight-bearing, disturbance of locomotion, and interference with standing contributed to functional loss.  During flare-ups or with repeated use over time, the appellant experienced increased pain with repeated use, but there was no change in range of motion.  There was no other functional loss during such periods.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Regarding functional impact, the appellant had trouble walking or standing for long periods.

The appellant was afforded a contracted foot examination in August 2020.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, right metatarsal stress fracture was diagnosed.  The appellant complained of pain and swelling over the foot which is worse with standing and walking.  Flare-ups and functional loss were denied.  The examiner opined that the appellant’s right foot symptoms were mild in severity.  The foot condition chronically compromised weight bearing but did not require arch supports, custom orthotic inserts, or shoe modifications.  Examination revealed pain on weight-bearing, disturbance of locomotion, and interference with standing.  Such contributed to a functional loss.  With repeated use over time, pain would significantly limit functional ability as there is pain with walking and standing.  No assistive devices were used and amputation with prosthesis would not equally serve the appellant.  Regarding functional impact, the appellant could not stand or walk for too long due to pain.  There was no evidence of pain on active range of motion, passive range of motion, or non-weight bearing.  There was pain on weight bearing.

As delineated above, the appellant’s right foot disability has been manifested by pain and swelling, which limit her ability to walk and stand throughout the period on appeal.  While examiners have described her symptoms as mild in severity, the Board, affording the appellant the benefit of the doubt, finds that her right foot symptoms have been moderate in severity throughout the period on appeal.

The words “mild,” “moderate,” and “severe” are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  See 38 C.F.R. § 4.6. 

No examiner has described the appellant’s right foot disability as greater than moderate in severity.  The Board finds that the reported functional impairments have not been so severe, frequent, and/or prolonged to warrant a rating higher than 10 percent.  In other words, even considering functional impairment due to pain and other factors, the appellant’s symptoms have not been shown to be so disabling as to actually or effectively result in more than moderate limitation of foot function.  

There is no indication, nor is it asserted, that the appellant has lost all functional use of the foot.  Rather, the appellant is still able to ambulate without assistive devices.  Amputation with prosthesis would not equally serve the appellant, as noted by clinicians who examined her.

In Copeland v. McDonald, 27 Vet. App. 333 (2015), the United States Court of Appeals for Veterans Claims (Court) addressed the application of Diagnostic Code 5284, for other foot disabilities, when a veteran’s service-connected foot disability was specifically provided for in the schedular rating criteria.  In that case, VA argued that because pes planus is specifically addressed by DC 5276, and hallux valgus is specifically addressed by DC 5280, to rate those foot disabilities under DC 5284 would be rating by analogy, which is not permitted when there is a diagnostic code that is specifically labeled with the name of a particular condition.  The Court agreed, holding that to rate under DC 5284, for “Foot injuries, other,” would not be rating by analogy, as to do so would ignore the plain meaning of the term “other,” and would make the remaining foot-related Diagnostic Codes redundant. 

DC 5283 is for malunion or nonunion of the tarsal or metatarsal bones.  DC 5284 addresses non-specific foot injuries.  A reasonable reading of the relevant diagnostic codes suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other diagnostic codes, which is not the case here.  In any event, the Board notes that the rating criteria for DCs 5283 and 5284 are nearly identical.  Therefore, because there are specific diagnostic codes to evaluate disorders of the metatarsal, consideration of other diagnostic codes (particularly Diagnostic Code 5284) for evaluating the disability is not appropriate.  See 38 C.F.R. § 4.20.  In any event, the comparison is of no real impact, as the ratings under DC 5284 and 5283 are the same.

As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Given the evidence set forth above, such a conclusion certainly cannot be made in this case.  Under these circumstances, the record is sufficient to award entitlement to an initial 10 percent rating, and no higher, for right foot disability.

Constipation

The Board finds that the preponderance of the evidence establishes that entitlement to an initial compensable rating for constipation prior to August 14, 2020, is not warranted, and that the evidence is in relative equipoise as to whether an initial rating of 10 percent, and no higher, is warranted thereafter.

The appellant’s constipation disability has been rated analogously to irritable colon syndrome and assigned a noncompensable (zero percent) disability rating pursuant to 38 C.F.R. § 4.114, DC 7399-7319.  Under DC 7319, a noncompensable rating is warranted for mild irritable bowel syndrome, with disturbances of bowel function with occasional episodes of abdominal distress.  A 10 percent disability rating is warranted for moderate irritable bowel syndrome with frequent episodes of bowel disturbance and abdominal distress.  A maximum schedular 30 percent disability rating is warranted for severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress.  38 C.F.R. § 4.114, DC 7399-7319.

Received in February 2015 was a January 2015 statement of the appellant, in which she reported that she developed severe constipation from medications prescribed for her service-connected disabilities.  Received in June 2015 was a January 2015 statement of the appellant’s spouse.  He also stated that the appellant experienced severe constipation.  

The appellant sought emergency treatment in March 2015 for pelvic and left lower quadrant pain and constipation.  

A May 2016 gastroenterology note states that the appellant reported one or two bowel movements per week.  Miralax and Metamucil have been ineffective.  Bowel movements are hard and associated with straining.  Rectal bleeding was rare.  The appellant complained of difficulty swallowing, constant bolus sensation, sore throat, and epigastric pain every time she eats.  She also reported dark stool.  The assessment was GERD, hemorrhoids, hemorrhage of anus and rectum, and constipation.

The appellant was afforded a VA intestinal conditions examination in July 2016.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, constipation was diagnosed.  The appellant endorsed chronic constipation and occasional mild abdominal pain.  Continuous medication, Linzess before every meal, was required.  Signs and symptoms included occasional mild abdominal pain every month.  There were no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks.  She did not have attributable weight loss, malnutrition, serious complications, or other general health effects.  There was no functional impact.

In a June 2018 VA Form 9, it was asserted that the appellant’s constipation continued to worsen.

The appellant was afforded a contracted rectum and anus examination in August 2020.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, hemorrhoids were diagnosed.  It was noted that the appellant experienced bloating, blood in stools, pain, swelling, chronic constipation, itch, and sensitivity.  Continuous medications were required.  The appellant denied examination but it was noted that she had moderate hemorrhoids with persistent bleeding.  There was no anal or perianal fistula, rectal stricture, impairment of rectal sphincter control, rectal prolapse, or pruritus ani.  Regarding functional impact, she could not lift heavy objects, 

The appellant was afforded a contracted intestinal conditions examination on August 14, 2020.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, constipation was diagnosed.  The appellant reported that the condition had progressed such that she had a bowel movement every two weeks.  Continuous medication was required for control.  There had not been any surgical treatment.  Signs and symptoms included constant abdominal distension and constant constipation.  The appellant experienced frequent episodes of bowel disturbance with abdominal distress.  There had been no attributable weight loss, malnutrition, serious complications, or other general health effects.  There was no functional impact.  The examiner noted that there had been a worsening of the appellant’s symptoms.

Applying the facts to the criteria set forth above, the Board finds that the preponderance of the evidence is against the award of an initial compensable rating for constipation prior to August 14, 2020, and that the evidence is in relative equipoise as to whether an initial rating of 10 percent, and no higher, is warranted thereafter.

The appellant herself described her constipation-related symptoms as mild abdominal pain during her May 2016 VA examination.  There were not frequent episodes of abdominal distress.  Indeed, it was noted that the appellant’s abdominal pain occurred monthly.  The severity and frequency of the appellant’s symptoms prior to August 14, 2020, do not more nearly approximate moderate severity or frequent episodes of bowel disturbance with abdominal distress.

Since August 14, 2020, the appellant’s constipation has been no greater than moderate in severity.  She has experienced frequent episodes of bowel disturbance with abdominal distress.  She experienced bloating and swelling and constant constipation.  

At no point during the period on appeal was the appellant experiencing more or less constant abdominal distress.  As such, an initial 30 percent rating is not warranted for any portion of the period on appeal.

In sum, the most probative evidence establishes that entitlement to an initial compensable rating for constipation prior to August 14, 2020, is not warranted, and that the evidence is in relative equipoise as to whether an initial 10 percent rating, and no higher, is warranted thereafter.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Peripheral Vestibular Disorder 

For the reasons that follow, the Board finds that the most probative evidence is against the award of an initial compensable rating for peripheral vestibular disorder prior to May 21, 2015, or a rating in excess of 10 percent thereafter.

The appellant’s peripheral vestibular disorder is rated under DC 6204.  A 10 percent rating is assigned for occasional dizziness, and a 30 percent rating is warranted for dizziness and occasional staggering.  A Note following the rating criteria provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under DC 6204. 38 C.F.R. § 4.87, DC 6204, Note. 

The appellant was afforded a VA ear conditions examination in September 2013.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, peripheral vestibular disorder was diagnosed.  The appellant complained of hearing loss and intermittent vertigo.  However, these complaints were minor compared to knee pain from stress fracture.  Continuous medication was not required.  She did not have any findings, signs, or symptoms attributable to Meniere’s syndrome.  There had been no surgical treatment.  Examination revealed that the external era, ear canal, tympanic membrane, gait, Romberg test, and limb coordination test were all normal.  Dix Hallpike test for vertigo was not indicated.  There was no functional impact.

VA medical records reveal that review of symptoms was negative for vertigo or dizziness during June 2013, September 2013, April 2014, August 2014, December 2014, and January 2015 clinical visits.

On May 21, 2015, the appellant reported daily headaches, occasional dizziness, and unsteady gait with dizziness.

A June 27, 2016, neurology consult note states that the appellant’s headaches were persistent and constant for two to three months and not going away.  Dizziness and other effects were noted.

The appellant was afforded a VA ear conditions examination in August 2016.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, dizziness was diagnosed. The appellant complained of intermittent right otalgia.  She also reported occasional tinnitus, “buzzing,” which can be a few seconds or hours, not necessarily associated with otalgia.  She has episodes of dizziness or lightheadedness.  Ear pressure otalgia and problems with “popping” her ears on airplanes and in elevators.  Often the problems occur when her nose is clogged.  Congestion occurs several times a week, but the appellant did not associate such with any inhalant allergies.  Headaches are severe at times.  The appellant did not have any findings, signs, or symptoms related to Meniere’s syndrome, chronic ear infection, inflammation, or cholesteatoma.  Examination revealed normal external ear, ear canal, gait, Romberg test, and limb coordination test.  Right tympanic membrane appeared retracted, implying possible eustachian tube dysfunction.  Dix Hallpike test was deferred because the appellant complained of low back problems.  No spontaneous nystagmus was present.  Fukuda test did not demonstrate an imbalance or asymmetry with the vestibular mechanism.  

The appellant was seen in the Our Lady of Lourdes Emergency Department in October 2016 for headache and dizziness.

The appellant was evaluated at Virtua Memorial Balance Center in October 2016.  Gaze/spontaneous testing was positive for vertical up-beating spontaneous nystagmus.  Smooth pursuit was abnormal in the horizontal plane.  Saccadic tests and optokinetic tests were normal in the horizontal plane.  Positional tests were positive for non-fatiguing vertical up-beating nystagmus in all vision-denied positional studies.  Dix-Hallpike maneuvers were positive for a subjective report of vertigo during right and left Hallpike with no corresponding nystagmus observed.  Air caloric irrigation did not produce a clinically significant unilateral weakness or directional preponderance.  Balance function testing revealed that limits of stability and posturography testing were abnormal.  The impression was positive for vertical up-beating nystagmus in all vision-denied VNG subtests.  This CNS indicator, along with the appellant’s degraded postural stability on balance function testing and degraded smooth pursuit may be correlated with available imaging studies.  A neurology consultation was indicated.  The appellant reported a history of migraines and a vestibular migraine etiology cannot be dismissed.  The impression was also positive for a subjective report of vertigo during right and left Hallpike with no corresponding nystagmus observed.  Repeat Hallpike testing was recommended to evaluate for benign paroxysmal positional vertigo (BPPV) etiology.

November 2016 medical records indicate that ear nose throat examination was normal, although the appellant complained of recurrent, spontaneous dizziness.  

The appellant was afforded a VA ear conditions examination in July 2017.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, peripheral vestibular disorder was diagnosed.  The appellant reported that her episodes of vertigo had become more frequent, lasting seconds.  She reported that she required emergency treatment for vertigo on two occasions.  Continuous mediation was required.  The appellant did not have any findings, signs, or symptoms related to Meniere’s syndrome, chronic ear infection, inflammation, or cholesteatoma.  Physical examination of the external ear, ear canal, tympanic membrane, and gait was normal.  Romberg test was positive for unsteadiness.  Dix Hallpike test for vertigo was notable for right ear down vertigo sensation without nystagmus, and left ear down possible vertigo with nystagmus 20 seconds.  Head up revealed no nystagmus and it was noted the appellant favors the left.  Limb coordination test was not indicated.  There was no functional impact.  Notably, the examiner indicated that the frequency and severity of dizzy episodes had increased.

The appellant was afforded a contracted ear conditions examination in August 2020.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, peripheral vestibular disorder was diagnosed.  The appellant denied currently experiencing vertigo at the time of examination, but she had experienced it the previous night.  Vertigo can happen at any time.  Continuous medication was not required but vestibular therapy and Meclizine were utilized as needed.  The appellant experienced vertigo more than once weekly and the duration of an episode was less than one hour.  Physical examination of the external ear and ear canal was normal.  There as a retracted tympanic membrane on the right side, but the left was normal.  Gait was normal, Romberg test was normal, and limb coordination test was normal.  Dix Hallpike was abnormal in that the appellant developed a spinning sensation.  Regarding functional impact, the appellant would be limited from driving and operating machinery.  The examiner noted that the appellant’s symptoms had worsened.

Applying the facts to the criteria set forth above, the Board finds that the preponderance of the evidence is against the award of an initial compensable rating for peripheral vestibular disorder prior to May 21, 2015, because the weight of the competent and probative evidence is against finding a diagnosis of vestibular disequilibrium supported by objective findings.  Rather, there were no objective findings prior to May 21, 2015.  The appellant herself competently reported symptoms prior to May 21, 2015, including during her September 2013 VA examination, but examination was negative for objective findings of vestibular disequilibrium.

Although the Board’s review of the evidence of record does not reveal objective findings on May 21, 2015, as noted by the RO in the September 2016 rating decision, it will not disturb the 10 percent rating in effect from May 21, 2015. 

There is no indication, nor is it asserted, that the appellant has experienced staggering since May 21, 2015, associated with her service-connected peripheral vestibular disorder.  Thus, an initial rating in excess of 10 percent is not warranted for any portion of the period from May 21, 2015.

In sum, the most probative evidence establishes that entitlement to an initial compensable rating for peripheral vestibular disorder prior to May 21, 2015, or a rating in excess of 10 percent thereafter, is not warranted.  As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Depressive Disorder

The Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, in excess of 50 percent from May 19, 2016, to July 22, 2020, and in excess of 70 percent thereafter, is not warranted.

The appellant’s acquired psychiatric disability has been rated under the criteria contained in the General Rating Formula for Mental Disorders.

Under those criteria, a 30 percent rating will be assigned when there is evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9413.

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

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

In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir 2013).  The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  Id. at 118.  The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’”  Id.

The appellant was afforded a VA psychiatric examination in September 2013.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, the VA examiner opined that the appellant experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The appellant was single, never married, and did not have children.  She lived with her mother and described her family relationship as “good.”  The appellant described her social relationships as “not too many,” and reported that she enjoyed watching television, surfing the internet, and reading.  The appellant had a Bachelor’s degree in Business Administration.  Prior to her active service, she held many jobs, the most recent as a bank teller.  However, since discharged from active service, she had not been gainfully employed.  The appellant had no history of psychiatric hospitalizations or parasuicidal behavior.  She was unhappy with the effects from her medications so she adjusted the dosage herself.  Symptoms included depressed mood and anxiety.  Additional symptoms attributable to her mental disorder included lack of concentration, irritability, ruminations, frustration over physical limitations, and psychomotor retardation.  She was capable of managing her own financial affairs.

Of record is a DBQ completed by Dr. R.F., a private clinician, in February 2015.  Dr. R.F. opined that the appellant experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency an ability to perform occupational tasks only during periods of significant distress, or symptoms controlled by medication.  Symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood.  She was capable of managing her own financial affairs.

The appellant was afforded a VA psychiatric examination in May 2016.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, the examiner opined that the appellant experienced occupational and social impairment with reduced reliability and productivity.  The appellant had been married for nearly three years and her husband was present during the examination to assist by facilitating translation and providing information.  However, the appellant stated that she feels angry and sad and does not talk to him.  Rather, she withdraws.  The appellant experiences episodes of intense crying and upset, and but when her husband tries to comfort her, she wants to be left alone.  She takes her frustration out on him by yelling at him two to three times a week.  Hurtful words including profanity, and physical violence were denied.  The appellant also will speak to her parents and siblings in Puerto Rico two to three times weekly.  However, she sometimes does not feel like talking and will even answer the phone.  She has a couple of friends in Puerto Rico as well.  The appellant still had not worked since separation and she also had not been in an educational program.  The appellant expected that she would have impairments in a work setting with changing mood, irritability, yelling, crying, and wanting to be left alone.  There would be difficulty concentrating to read, learn new skills, and complete tasks.  The appellant would feel drowsy and fatigued and have difficulty sustaining full effort.  The appellant stated that her prescribed medications only helped a little, but she was trying to schedule a psychotherapy telehealth appointment.  The appellant denied any history of arrests, fights, or altercations.  She also denied any alcohol consumption in the past four to five years and denied any history of illicit drug use.  Symptoms include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired concentration, and irritability.  Examination revealed an open and cooperative appellant, with her husband present at her request.  There was no evidence of psychosis, mania, or disorientation.  Symptoms of mania were denied.  She reported attending to hygiene, including showering once or twice a day.  Suicidal and homicidal ideation were denied.  The appellant was capable of managing her financial affairs.

The appellant was afforded a VA psychiatric examination in August 2017.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, the examiner opined that the appellant experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  It was noted that the appellant had been married since 2014, without children.  She lived with her husband and described family relations as generally good.  The appellant, although in receipt of a Bachelor’s degree in Business Administration, has not worked since discharge.  The appellant’s recent VA treatment notes indicated that she remained depressed and anxious, if not more symptomatic than before, and that her struggles with pain are a major stressor.  Legal, behavioral, and substance issues were denied.  Symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood.  Examination revealed that the appellant could ambulate unassisted and was alert, coherent, relevant, logical, appropriate, oriented to all spheres, and neither suicidal nor homicidal.  She had good judgment and insight, depressed mood, affect was congruent with mood, there was no indications of a perceptual or thought disorder, and she seemed in good contact with reality.  She was capable of managing her financial affairs.

The appellant was afforded a VA psychiatric examination in July 2020.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, the examiner opined that the appellant experienced occupational and social impairment with deficiencies in most areas.  Since the last examination, the appellant reported persistent, intense symptoms of chronic and debilitating periods of sadness and low mood, prominent attenuations in daily activities of interest or pleasure, chronic and challenging feelings of hopelessness/helplessness including due to pain, restlessness, agitation, feeling chronically “on edge,” chronic worries and ruminations, significant difficulties in sleep functioning including challenges in acquiring sustaining restorative rest, early awakening, and inability to recover sleep once awakened, associated decrements in energy resulting in daily mental and physical fatigue, variability in appetite, difficulties in interactions and relationships due to intense mood dysregulation, low self-esteem and self-deprecating thoughts, compromises in memory, attention, concentration, and focus, irritability, pervasive emotional lability, and anhedonia.  She denied any substantive periods of sustained symptom remission since the last examination.  The appellant remained in contact with her parents and siblings, although visiting in-person has not been possible due to the pandemic.  The appellant remained married to her husband.  The appellant endorsed feelings of being unproductive due to her challenges to maintain employment and because she stays at home and relatively isolated.  She stated that her husband has a lot of patience with her, given her episodes of excessive and intense mood states, including intense lability, crying, anxiety, panic, agitated yelling when upset, emotional distancing, and physical detachment.  The appellant had no ongoing social connections or close friendships in her current location, although she had long-term friends who lived in Puerto Rico.  The appellant endorsed a fear of developing and losing close friendships.  The examiner indicated that the appellant’s impairment in personal and social functioning was moderate to significant.  There was no change regarding occupational and educational history since the last examination, although the appellant noted that, in addition to her Bachelor’s degree in Business Administration, she held an Associate’s Degree in accounting and had the desire to go back to school but was unsure of her ability to handle it due to her psychiatric symptoms.  She had worked at a pharmacy processing orders and handling retail duties for about half of 2019 but she was released due to problems with tardiness, inattention, and lack of focus, and episodic challenges in modulating emotional lability.  The appellant indicated that she had these difficulties in the last several positions she had held.  She also indicated that she experiences self-deprecation following overreactions.  The appellant reported challenges with focusing on job tasks and completing them; as such, she feels unproductive and like a “failure,” despite her actual ability and competencies.  The examiner opined that the appellant continued to experience moderate to significant impairment in occupational functioning.  The appellant had been receiving outpatient treatment at the VA Medical Center and medications have been variably effective as different ones were tried.  However, she also had difficulty in forming relationships with clinicians so she was not currently in individual therapy.  Symptoms included depressed mood, anxiety, panic attacks more than once a week, near-continuous depression which affected the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control such as unprovoked irritability with periods of violence.  Examination revealed a casually-dressed appellant with average hygiene.  She was alert and oriented to all spheres.  Behavior and eye contact were generally appropriate.  Attitude toward the examiner was cooperative and communicative, mood was depressed and somewhat flattened, and affect was labile.  The appellant was tearful throughout most of the examination.  However, she responded well to verbal support and reassurance.  Thought processes were logical and goal-directed.  There was no indication of psychosis or mania.  Speech was unremarkable, judgment and insight appeared generally intact and good during the examination, although the appellant reported some compromise in judgment, especially when interacting with others while she is anxious, agitated, or depressed.  She endorsed difficulty in establishing and maintaining supportive relationships, which results in pronounced periods of social isolation, patterns of distancing, and emotional detachment.  The appellant indicated a general ability to perform activities of daily living, including eat, maintain personal hygiene, and address chores and tasks.  However, she had reduced motivation and mood when her symptoms were more prominent.  The appellant explicitly denied current or proximate suicidal or homicidal ideation, intent, plans, or proximate gestures.  However, she indicated that at times, she feels like she cannot go on.  She was capable of managing her own financial affairs.

Applying the facts to the criteria set forth above, the Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, in excess of 50 percent from May 19, 2016, to July 22, 2020, and in excess of 70 percent thereafter, is not warranted.

Prior to May 19, 2016, the appellant’s depressive disorder resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).  She did not experience occupational and social impairment with reduced reliability and productivity.

The appellant had a good relationship with her family.  She experienced depressed mood, anxiety, lack of concentration, irritability, ruminations, frustration over physical limitations, chronic sleep impairment, disturbances of motivation and mood, and psychomotor retardation.  There was no suicidal or homicidal ideation.  However, the appellant admitted during her September 2013 examination that she was unhappy with the effects from her medication so she self-adjusted the dosage.  In other words, she was medication noncompliant.

The Board notes that it has expressly considered the holding in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), but concludes that it is not applicable the instant matter because such provision expressly authorizes VA to take into account the ameliorative effects of medication when evaluating mental disorders.  See 38 C.F.R. § 4.130, DCs 9201-9440, General Rating Formula for Mental Disorders (providing a noncompensable rating when, inter alia, “symptoms are not severe enough... to require continuous medication” and a ten percent rating when, inter alia, “symptoms [are] controlled by continuous medication”); see also McCarroll v. McDonald, 28 Vet. App. 267 (2016).  Therefore, the Board finds this case is distinguishable from Jones, and it may consider the effect of medication when rating the appellant’s disability level.  Even if medication compliance were not considered, however, the preponderance of the evidence would still be against an initial rating in excess of 30 percent for any portion of the period on appeal prior to May 19, 2016.

Notably, her private clinician, Dr. R.F. opined that the appellant only experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency an ability to perform occupational tasks only during periods of significant distress, or symptoms controlled by medication, the criteria for a 10 percent evaluation.  

The Board finds that the most probative evidence establishes that the appellant’s depressive disorder did not result in occupational and social impairment with reduced reliability and productivity prior to May 19, 2016.  Rather, the evidence establishes that she was able to cultivate a relationship with a man who became her husband, as she reported in May 2016 that she had been married for nearly three years.  There was no suicidal or homicidal ideation.

From May 19, 2016, to July 22, 2020, the appellant’s depressive disorder resulted in no more than occupational and social impairment with reduced reliability and productivity.  The Board finds that the most probative evidence establishes that the appellant’s depressive disorder did not result in occupational and social impairment with deficiencies in most areas.  She did not experience occupational and social impairment with deficiencies in most areas.  As noted during her May 2016 examination, although she will withdraw when she feels angry and sad and will yell at him two to three times a week, she and her husband had been married for nearly three years and he was willing and able to assist during the examination with respect to providing information and facilitating translation.  Notably, however, physical violence and profane, hurtful words were denied.  The appellant was in contact with friends and her parents in Puerto Rico, but sometimes she would ignore the telephone when she was not in the mood to talk to people.  Her symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired concentration, and irritability.  However, there was no mania, impairment regarding hygiene, suicidal or homicidal ideation, or difficulty managing her financial affairs.  

The Board finds that the most probative evidence establishes that the appellant’s depressive disorder did not result in occupational and social impairment with deficiencies in most areas during this period.

Since July 23, 2020, the appellant’s depressive disorder resulted in no more than occupational and social impairment with deficiencies in most areas.  She has not experienced total occupational and social impairment.  Rather, even though the appellant experienced impaired impulse control such as unprovoked irritability with periods of violence, there was no suicidal or homicidal ideation.  The appellant was able to manage her own financial affairs and perform activities of daily living.  She still remained in contact with her parents and siblings.  The lack of in-person interaction was attributed to the current coronavirus pandemic.  She remained married to her husband and noted that her husband had a lot of patience with her, including her episodes of excessive and intense mood states, including intense lability, crying, anxiety, panic, agitated yelling when upset, emotional distancing, and physical detachment.  Notably, the appellant had a desire to go back to school, despite already holding a Bachelor’s degree in Business Administration, she held an Associate’s Degree in accounting.  Her apprehension was attributed to her lack of confidence that she could handle the educational environment due to her psychiatric symptoms.  She reported that she attempted to work in 2019 processing pharmacy orders and handling retial duties, but she had difficulty completing tasks, arriving on time, and focusing and completing tasks.  The appellant did endorse difficulty in forming relationships with clinicians so she was not currently in individual therapy.  Although there was impaired impulse control the appellant was not physically violent.  Crucially, she was able to maintain her relationship with her husband and her family.  The Board cannot find that such resulted in total occupational and social impairment.  However, the Board emphasizes that it does find that the appellant is unable to secure or follow substantially gainful employment as a result of the combined effects of her service-connected disabilities, throughout the period on appeal.

In sum, the Board finds that the most probative evidence establishes that entitlement to an initial rating in excess of 30 percent for depressive disorder prior to May 19, 2016, in excess of 50 percent from May 19, 2016, to July 22, 2020, and in excess of 70 percent thereafter, is not warranted.  As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Migraine Headaches

The Board finds that the evidence is in relative equipoise as to whether an initial 50 percent rating for migraine headaches is warranted for the entire period on appeal.

The appellant was afforded a VA headaches examination in September 2013.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, migraine headaches were diagnosed.  The appellant reported that she experiences repeated episodes of headaches during the day, every day.  Normally the headache is mild and she can continue regular activities, but about four times a week, the headache intensifies and flares to a severe level.  At this time, she takes medication and isolates in her room for about an hour, with an ice pack on the forehead and the lights off.  The headache localizes at the forehead and both temples and is accompanied by lightheadedness and blurred vision.  The appellant attributed her headaches to emotional stress and constant worries.  She denied head trauma, flashing lights, nausea, vomiting, dizziness, paresthesias or motor weakness in extremities, or nasal or sinus congestion.  The treatment plan included taking medication, Panadol or Tramadol.  Symptoms included constant headache pain, which is pulsating or throbbing on both sides of the head, and worsens with physical activity.  Non-headache symptoms included sensitivity to light and changes in vision.  The typical duration was less than one day.  She had characteristic prostrating attacks more frequently than once per month, but did not have very frequent prostrating and prolonged attacks.  Regarding functional impact, the appellant would have decreased concentration and productivity and increased absenteeism due to the high frequency of reported flare-ups.   

In August 2014, the appellant sought emergency room treatment for fever, general malaise, muscle and joint pain, and headaches.  She was assessed with viral disease.

The appellant was seen in the Our Lady of Lourdes Emergency Department in October 2016 for headache and dizziness.

The appellant was afforded a VA headaches examination in July 2017.  The claims file was reviewed.  Following examination of the appellant and review of the claims file, migraine headaches were diagnosed.  The appellant reported that she has continued to experience daily headache episodes, with migraine headaches five to six times per week.  Since the last examination, she had gone to the emergency room on two occasions due to her migraine headaches.  The treatment plan included taking Fioricet and Topiramate.  Symptoms included pulsating or throbbing head pain on both sides of the head, which worsens with physical activity.  The pain starts in the forehead and then radiates to the whole head.  Non-headache symptoms included nausea, sensitivity to light and sound, changes in vision, and dizziness.  The duration of typical head pain is one day.  The appellant experienced an average of one characteristic prostrating attack per month and did not experience very prostrating and prolonged attacks productive of severe economic inadaptability.  There was no functional impact.

The Board notes that the July 2017 VA examiner offered no explanation for why there was no functional impact at all from the appellant’s competently and credibly reported daily headache episodes, with migraines five to six times per week, accompanied by, inter alia, sensitivity to light and sound.  Further, when compared to the September 2013 examination report, which did note that the appellant’s headaches would result in increased absenteeism from work, the July 2017 examination report does not indicate that the severity or frequency of headache symptoms had lessened.  As such, the Board affords little weight to the July 2017 examiner’s opinion that the appellant’s headaches did not cause functional impairment.  Additionally, the Board affords little weight to the opinions of both examiners that the appellant’s headaches were not productive of severe economic inadaptability, as such is inconsistent with the competent evidence of record.

The Board has reviewed the evidence of record and finds that the evidence is in relative equipoise as to whether the severity, duration, and frequency of the appellant’s migraine headaches more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the period on appeal.  A 50 percent evaluation under DC 8100 is the maximum schedular evaluation available for migraine headaches.

As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Given the evidence set forth above, such a conclusion certainly cannot be made in this case.  Under these circumstances, the record is sufficient to award entitlement to an initial rating of 50 percent, and no higher, for migraine headaches.

TDIU

VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Id.

Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341(a), 4.16(a).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:  (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation.  Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion.  Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age.  38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363.

The appellant asserts, and the record reasonably raises, that the combined effects of her service-connected disabilities render her unable to secure or follow a substantially gainful occupation.  The Board has thus considered a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

Although the appellant is in receipt of a combined 100 percent schedular rating effective July 23, 2020, the grant of a total disability rating does not always render the issue of TDIU moot.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  

For the reasons that follow, the Board finds that it is the combined effects of the appellant’s service-connected disabilities which have rendered her unable to secure or follow a substantially gainful occupation throughout the period on appeal.

As detailed supra, the appellant’s service-connected disabilities have interfered with her ability to perform occupational tasks and activities of daily living throughout the period on appeal.  Her back, left hip, right foot, and bilateral knee disabilities interfere with her ability to stand or sit comfortably for extended periods of time, or to be able to lift and carry items.  The appellant’s psychiatric disability has interfered with her ability to interact with coworkers and the public, and it also has limited her ability to successfully deal with workplace stress.  Her psychiatric and headache symptoms have limited her ability to be consistently productive in a working environment.  The appellant’s constipation and peripheral vestibular disorder also interfere with her ability to perform occupational tasks.

While the appellant could likely be able to secure or follow a substantially gainful occupation with reasonable accommodations if her only disabilities were orthopedic, psychological, or neurological, the Board finds that the evidence is in relative equipoise as to whether the appellant is unemployable as a result of all of her service-connected disabilities combined.  Notably, the appellant’s education and work experience include working as a bank teller, but she has not been able to work at any point during the period on appeal.  She attempted to receive reasonable accommodations due to her need to change positions from sitting to standing, and not being able to lift or carry very much, as a result of her orthopedic disabilities, but her migraine headaches and psychiatric symptoms, and other difficulties such as with constipation, taken together with the orthopedic limitations, renders her unable to secure or follow a substantially gainful occupation.

As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Given the evidence set forth above, such a conclusion certainly cannot be made in this case.  Under these circumstances, the record is sufficient to award entitlement to a TDIU.

REASONS FOR REMAND

Regarding the service connection claim for GERD, the appellant asserts that medication taken for her service-connected disabilities, including those for pain, caused her to develop GERD.  See e.g. August 2020 substantive appeal.

The August 2016 VA medical opinion is inadequate because it only addresses whether the appellant’s calcium and vitamin D supplements, taken for osteoporosis, caused the development of GERD.  Aggravation was not addressed; and the evidence of record indicates that the appellant takes a great deal of other medications, prescribed and over-the-counter, including for service-connected disabilities.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As such, a new medical opinion should be obtained.

Regarding the increased rating claims for the appellant’s bilateral knee disabilities, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.”  Id. 

Relevant to the matter are the changes to DC 5257, other impairment of the knee, which address recurrent subluxation and instability.  The appellant has reported subjective instability of the knees on multiple occasions during the period on appeal.  As such, the Board finds that the appellant should be afforded a new knee examination to both determine the current severity and manifestations of her service-connected knee disabilities and which will provide the necessary information to determine whether the old or new regulations will be more favorable to the appellant for the period February 7, 2021, to the present.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257); see also Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).  

The matters are REMANDED for the following action:

1. With any necessary identification of providers (and authorizations to secure records) by the appellant, obtain all outstanding VA and private medical records pertaining to treatment or evaluation of the appellant’s GERD and bilateral knee disabilities.

2. Then, obtain a medical opinion from an appropriate clinician as to the nature and etiology of the appellant’s GERD.  Access to the claims file should be made available to the examiner for review. 

After reviewing the claims file, the examiner should opine as to the following: 

Is it at least as likely as not that GERD had its onset in service or is otherwise related to the appellant’s active service? 

If not, is it at least as likely as that GERD was proximately due to or the result of medications taken for service-connected disabilities, over-the-counter and prescribed, including for pain? 

If neither, is it at least as likely as not that a GERD was aggravated (made worse) by medications taken for service-connected disabilities, over-the-counter and prescribed, including for pain?  If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. 

In providing the requested opinions, the clinician should review the relevant evidence of record. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 

In providing the requested opinions, the clinician should consider the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant’s reported symptoms. 

If there is any medical reason to accept or reject the proposition that medications taken for service-connected disabilities, over-the-counter and prescribed, including for pain, caused or aggravated GERD, this should be noted.  Stated another way, do the appellant’s reports about her symptoms align with how GERD is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? 

If the clinician determines that an examination of the appellant is necessary, one should be scheduled.

3. Schedule the appellant for an examination with an appropriate clinician regarding the severity and manifestations of her service-connected bilateral knee disabilities.  Access to the claims file must be made available to the examiner for review in connection with the examination.   

The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant’s disabilities under the rating criteria in effect prior to February 7, 2021, and the rating criteria in effect thereafter, to include the severity of any instability.  

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repeated use over time.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the appellant’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).  

Clearly elicit from the appellant the extent of her reported knee instability and the functional impairment associated with said instability. 

Clearly identify any and all assistive devices used by the appellant throughout the appeal and ascertain from the appellant whether any such devices were prescribed by a treating clinician. 

Comment upon whether the appellant has suffered from the below, or symptomatology/disability equivalent to the below: 

Recurrent subluxation or instability: 

Unrepaired or failed repair of complete ligament tear causing persistent instability 

(*) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. 

(*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 

(*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 

Patellar instability: 

(*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker 

(*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker 

(*) A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker 

(*) Note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 

(*) Note, A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 

 

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Behlen, 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.