Citation Nr: 21015158
Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 13-21 862A
DATE: March 16, 2021

ORDER

Entitlement to a rating in excess of 50 percent for depression is denied.

Entitlement to an initial rating in excess of 30 percent for headaches is denied.

Entitlement to a higher initial rating for lumbar strain with degenerative arthritis, rated as 10 percent disabling prior to September 10, 2018, and as 20 percent disabling on and after that date, is denied.

Entitlement to a higher initial rating, increased from 0 percent to 20 percent, but no higher, for a left trapezius muscle strain is granted.  

Prior to September 10, 2018, entitlement to an increased initial rating from 0 percent to 10 percent, but no higher, for left foot plantar fasciitis is granted.

On and after September 10, 2018, entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis is denied.

Entitlement to an initial compensable rating for carpal tunnel release scar of the left wrist is denied.

Entitlement to an initial compensable rating for carpal tunnel release scar of the right wrist is denied.

Entitlement to an initial compensable rating for plantar fascia release scar of the right foot is denied.

Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

Entitlement to service connection for a right elbow disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

FINDINGS OF FACT

1. The Veteran’s depression manifests in occupational and social impairment with reduced reliability and productivity, but not in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. The Veteran’s headaches do not manifest in very frequent, completely prostrating attacks, and they are not productive of severe economic inadaptability. 

3. Prior to September 10, 2018, even when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, or pain on movement, the Veteran’s lumbar strain with degenerative arthritis did not manifest in forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

4. On and after September 10, 2018, even when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, or pain on movement, the Veteran’s lumbar strain with degenerative arthritis did not manifest in forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

5. The Veteran’s left trapezius muscle strain manifests in painful motion but not in limitation of motion to 25 degrees from her side.

6. For the entire appeals period, the Veteran’s left foot plantar fasciitis has manifested in no more than moderate symptoms, such as weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet.

7. The Veteran’s carpal tunnel release scar of the left wrist is not painful; is not on her head; face, or neck; is not deep and nonlinear; does not cover at least 144 square centimeters; and does not result in functional impairment.

8. The Veteran’s carpal tunnel release scar of the right wrist is not painful; is not on her head; face, or neck; is not deep and nonlinear; does not cover at least 144 square centimeters (cm); and does not result in functional impairment.

9. The Veteran’s plantar fascia release scar of the right foot is not painful; is not on her head; face, or neck; is not deep and nonlinear; does not cover at least 144 square cm; and does not result in functional impairment.

10. The Veteran does not currently suffer from TBI symptoms for which service connection is not in effect.

11. The Veteran does not have a current right elbow disability, nor do symptoms of right elbow pain result in any functional impairment in earning capacity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 50 percent for depression have not been met.  38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434.

2. The criteria for entitlement to an initial rating in excess of 30 percent for headaches have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100. 

3. The criteria for entitlement to a higher initial rating for lumbar strain with degenerative arthritis, rated as 10 percent disabling prior to September 10, 2018, and as 20 percent disabling on and after that date, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242.

4. The criteria for entitlement to a higher initial rating, increased from 0 percent to 20 percent, but no higher, for a left trapezius muscle strain have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

5. Prior to September 10, 2018, the criteria for entitlement to an increased initial rating from 0 percent to 10 percent, but no higher, for left foot plantar fasciitis have been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284.

6. On and after September 10, 2018, the criteria for entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284 (prior to February 7, 2021); 4.71a, Diagnostic Code 5269 (effective February 7, 2021).

7. The criteria for entitlement to an initial compensable rating for carpal tunnel release scar of the left wrist have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 

8. The criteria for entitlement to an initial compensable rating for carpal tunnel release scar of the right wrist have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 

9. The criteria for entitlement to an initial compensable rating for plantar fascia release scar of the right foot have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 

10. The criteria for entitlement to service connection for residuals of a TBI, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, have not been met.  38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 

11. The criteria for entitlement to service connection for a right elbow disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, have not been met.  38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1988 to April 2010.  This matter comes before the Board on appeal from Regional Office (RO) rating decisions dated in August 2010, March 2011, December 2012, and January 2015.  In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.

Increased Rating

Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § Part 4.  When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned.  38 C.F.R. § 4.7.  “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded.  Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

1. Entitlement to a rating in excess of 50 percent for depression is denied.

The Veteran’s depression is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9434.  Disabilities that are evaluated under 38 C.F.R. § 4.130 are to be rated pursuant to VA’s General Rating Formula for Mental Disorders.  A 0 percent (noncompensable) rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 

A 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 

A 30 percent rating is warranted when there is 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 conversation normal), 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, recent events). 

A 50 percent evaluation is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. 

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

A 100 percent evaluation is warranted if 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. 

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has 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 (Fed. Cir. 2013).  In particular, the Federal Circuit has expressly rejected interpreting 38 C.F.R. § 4.130 in such a manner that would render specific symptomatology a secondary consideration at the 70 percent level.  Id. 

The Veteran noted in a September 2014 statement that her depression and anxiety are an ongoing problem.  She stated that her “condition is not getting any better because I am in pain [a] majority of the time which make[s] it very hard for me to get out of the dark with my other conditions that contributed to my overall quality of life.”  She stated that “I would say that I am very hopeless.”  She reported that “I know that my condition will hinder me to perform or hold a job due to loss of concentration because I am always in pain and feeling down at all times.”  

At her February 2017 Board hearing, the Veteran testified that she does not like to leave the home, but her husband started encouraging her to go out and “He’ll walk with me around the neighborhood but sometimes it is hard.”  (See Board hearing transcript, page 8.)  She reported that she cries “constantly.  The chronic pain that I have, the headaches and things it is a lot.”  (See Board hearing transcript, page 8.)  

The Veteran underwent VA examinations in connection with this claim in January 2015 and September 2018.

The January 2015 VA examiner determined that the Veteran’s depression most closely approximates “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.”  This level of impairment corresponds to a 10 percent rating.  

The Veteran has been married for 32 years.  She reported that she has friends, but they are all far away.  She reported that she stays at home a lot, but described that this is due to pain.  It was noted that she is treated with anti-depressants and medications for sleep and anxiety.  She also undergoes psychotherapy.  Of the symptoms that are enumerated in the rating criteria, the following actively apply to her diagnosis: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood.  She reported that she sleeps three to four hours each night and has crying spells when she is by herself.  She reported having feelings of guilt.  Her husband does much of the cooking and many of the household chores.  She reported irritability and decreased libido.  She reported weight gain in the past year.  There were no other symptoms attributable to mental disorders.  It was noted that the Veteran is capable of managing her financial affairs.

The September 2018 VA examiner, who was the same examiner who conducted the January 2015 VA examination, determined that the Veteran’s depression most closely approximates “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.”  This level of impairment corresponds to a 10 percent rating.  

She has been married for 35 years.  She reported that most of her friends are in the military and that they call each other.  She reported that she walks as an activity and enjoys travelling.  She reported that she receives psychiatric care; takes medication for depression, insomnia, and anxiety; and attends individual psychotherapy.  Of the symptoms that are enumerated in the rating criteria, the following actively apply to her diagnosis: depressed mood, anxiety, and chronic sleep impairment.

She denied ideas or plans of self-harm or harm to others, and motherhood and marriage are protective factors.  She sleeps an average of six to seven hours per night.  There were no other symptoms attributable to mental disorders.  It was noted that the Veteran is capable of managing her financial affairs.  The examiner noted that the Veteran enjoys travelling and “has close and meaningful relationships with family members.”  The examiner also noted that “There is no history of acute inpatient treatment.”  

The Board has also reviewed the Veteran’s post-service medical records.  These records reflect that the Veteran has been treated for her depression by VA.  The Board has reviewed the entirety of these records and notes that these records reflect that the Veteran does experience symptoms associated with her depression.  However, the symptoms that are described in these records are contemplated by her current 50 percent rating.  None of these symptoms corresponds to the enumerated criteria of the 70 percent and 100 percent ratings, nor are these symptoms of similar severity, frequency, and duration.

Based on the above, the Board finds that entitlement to a rating in excess of 50 percent is not warranted.  None of the enumerated rating criteria are demonstrated during this period, nor does the Veteran exhibit symptoms of similar severity, frequency, and duration.

Specifically, the Veteran has consistently and expressly denied thoughts, plans, or intentions to harm herself or others.  She does not exhibit obsessional rituals.  The Veteran’s speech has routinely been found to not be so impaired as to be intermittently illogical, obscure, or irrelevant.  Nor, similarly, have any impairments in her thought processes been found to be of comparable severity.  

The rating criteria contemplate different levels of depression and anxiety.  The 30 percent rating contemplates “depressed mood,” “anxiety,” and “panic attacks (weekly or less often).”  In addition to the 30 percent rating criteria, her current 50 percent rating contemplates “disturbances of motivation and mood” and “panic attacks more than once a week.”  The 70 percent rating criteria contemplate near-continuous panic or depression affecting the ability to function independently, appropriately and effectively.  The Board finds that the above evidence does reflect anxiety and depression, and these symptoms are of such severity to result in disturbances of motivation and mood.  The Board finds, however, that they do not rise to a level to result in near-continuous panic or depression affecting the ability to function independently, appropriately and effectively.  Specifically, in her September 2014 statement, the Veteran described her depression and anxiety as an ongoing problem.  She also described having difficulty “get[ting] out of the dark” and noted that “I know that my condition will hinder me to perform or hold a job due to loss of concentration because I am always in pain and feeling down at all times.”  Similarly, the Veteran indicated in her September 2014 statement, at her January 2015 VA examination, and at her Board hearing that her physical pain plays a significant factor in her dislike of leaving her home.  Thus, while the Veteran does mention depression and anxiety, she has indicated that her physical pain, rather than depression and anxiety itself, leads to impairment in functioning.  Moreover, the VA examination reports specifically reflect that the Veteran’s psychiatric disability does not manifest in near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively.  

Similarly, the Board finds that the Veteran’s decreased libido is of similar frequency, severity, and duration as the symptoms that are contemplated by the 50 percent criteria, as it does not contribute to deficiencies in most areas.  

She has not demonstrated impaired impulse control and has not displayed violent behavior.  While the Veteran did report irritability at her January 2015 VA examination, such irritability more closely approximates the severity, frequency, and duration of the symptoms of the 50 percent rating.  Her irritability is not suggested to be of such severity that she is unable to control it.  

She does not exhibit spatial disorientation.  While she does rely on her husband to primarily do chores and cooking, the Veteran is not demonstrated to be so impaired due to her depression that she neglects her personal appearance and hygiene.  While she has reported that she may be unable to work, her statements do not suggest that she would be unable to adapt to work or a work-like setting due to psychiatric disability.  Rather, the evidence suggests that such severity is due to physical pain.  

In addition, the Veteran has not demonstrated an inability to establish and maintain effective relationships.  Her relationship with her husband is indicated to be good and supportive, and she has described keeping in touch with friends.  

Nor do the Veteran’s psychiatric symptoms result in the even more severe levels of impairment of thought processes, communication, perception, behavior, functioning, or memory that are indicative of the 100 percent rating criteria.

In short, the Board finds that the criteria for a rating in excess of 50 percent are not met for the Veteran’s depression.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

2. Entitlement to an initial rating in excess of 30 percent for headaches is denied.

The Veteran’s headaches are currently rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  This rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months.  To warrant a maximum, 50 percent rating, the Veteran’s headaches would have to occur with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

The rating criteria do not define “prostrating.”  The Court of Appeals for Veterans Claims has noted that the phrase “characteristic prostrating attacks” means attacks that typically produce powerlessness or a lack of vitality.  Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).  In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.”  Id.  The Court held in Johnson that the criteria of Diagnostic Code 8100 are successive.  Thus, 38 C.F.R. §§ 4.7 and 4.21 are not for application.

An April 2010 medical record notes that the Veteran has had 10 years of daily headaches that can reach 9.5/10 in severity.  They were noted to be left hemicranial and are described as spreading forward from the left upper cervical region.  She noted that she has no headache-free periods.  She reported double vision, but no lost vision or intermittent blurring of vision.  She noted no nausea.  There is light/sound sensitivity with more severe headaches, which happens an estimated one to two weeks per month, constantly.  Between these headaches, she has an essentially constant 5/10 severity headache of the left hemicranium.  

A May 2010 medical record notes that the Veteran has a “Headache on entire left side and occurring daily.”  

The July 2010 VA examination report notes that the Veteran stated that her headaches occur daily and that she takes pain medication that temporarily alleviates, but does not cure, her pain.  The pain is sharp.  It is accompanied by nausea but not by vomiting.  She has no other associated symptoms.  She reported that she was seen a few times in the emergency room and given a shot due to the severity of her pain.  The disability has been stable since onset.  With respect to effects on occupational activities, it was noted that the Veteran’s headaches result in decreased concentration, inappropriate behavior, and pain.  It was noted that all of her activities of daily living are mildly to moderately affected due to pain.  

An October 2010 VA medical record notes that the Veteran has daily throbbing pain in the back of her head, and sometimes her neck.  

In a May 2011 statement, the Veteran reported that she suffers headaches often and that medication offers little to no help.  

She reported in a September 2011 statement that she has become a recluse due to the pain.  She also reported that “Last April of 2010 I was rushed to the hospital … because half of my body from left head down to my lower lip went numb, had blurry vision and all.”  

In a July 2012 statement, the Veteran noted that “My chronic migraine headache occurs from the time I wake up and lingers all through the day on a daily basis in which medications give me little or no relief at all.”  

A July 2012 VA medical record notes that the Veteran has chronic, persistent headaches and her medication was not helping.  

The September 2012 VA examination report notes that the Veteran’s headaches have worsened since the July 2010 VA examination.  She has them daily, and they are there when she wakes up and when she goes to sleep.  They are left-sided and throb.  She has photophobia and phonophobia but only rarely has nausea.  She takes medication for her headaches.  Her headache pain was noted to be pulsating or throbbing, localized to one side of the head, and worsened with physical activity.  It was not constant.  Sensitivity to light and sensitivity to sound were associated symptoms.  Nausea, vomiting, changes in vision, and sensory changes were not associated with the headaches.  The duration was listed as “chronic daily headache.”  It was noted that the Veteran has characteristic prostrating attacks that occur more frequently than once per month.  It was noted that she does not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain.  It was noted that she does not have prostrating attacks of non-migraine headache pain.  She does not have very frequent prostrating and prolonged attacks of non-migraine headache pain.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to her headaches.  It was noted that the Veteran’s headaches impact her ability to work in that she misses work and has to go home early because of pain.  

A February 2013 VA medical record notes that the Veteran “states her head hurts all the time constantly.”

The Veteran’s accredited representative noted at the Veteran’s February 2017 Board hearing that “The headaches are prostrating in nature requiring her to be bed ridden for days at a time if necessary.”  (See Board hearing transcript, page 4.)  She again reported that the headaches are “constant,” “especially like waking up in the morning and going back to sleep.”  (See Board hearing transcript, page 7.)  

The September 2018 VA examination report notes that the Veteran now has headaches that are manageable with medication.  She reported that headaches are worse when she does not sleep.  She reported that she has constant pain and has pain on both sides of the head.  It was noted that, in addition, her head feels numb.  She noted that her head pain typically lasts less that one day. It was noted that she does not have characteristic prostrating attacks of migraine or non-migraine headache pain.  The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to her headaches.  With respect to functional impact, it was noted that the Veteran’s headache condition does not impact her ability to work.  

The September 2020 VA examination report noted that the Veteran’s headache disability has worsened since onset.  She noted that current symptoms are “Tight band back of head, a few times a week.”  Her headaches are treated by medication.  It was noted that the Veteran’s symptoms include constant head pain and pain on both sides of the head.  No non-headache symptoms, including sensitivity to light and sensitivity to sound, were noted to be associated with her headaches.  The duration of typical headache pain was less than one day.  The Veteran was noted to have characteristic prostrating attacks of migraine / non-migraine pain once every two months.  She does not have very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to her headaches.  

Based on the above, the Board finds that entitlement to a rating in excess of 30 percent is not warranted for the Veteran’s headache disability for any portion of the appeals period.  The Board notes that the Veteran has described having very frequent headaches, and that her medical records support these statements.  The Board finds, however, that these very frequent headaches were not “completely prostrating.”  As noted above, the July 2010 VA examination report described her headaches as resulting in decreased concentration, inappropriate behavior, and pain, and mildly to moderately affecting her ability to perform activities of daily living.  In addition, the September 2012 VA examination report notes that the Veteran’s headaches impact her work in that she misses work and has to go home early.  The attacks that are described at this time were not attacks that typically produce powerlessness or a lack of vitality, much less frequent attacks capable of producing severe economic inadaptability. 

The Veteran’s representative stated at the Board hearing that “The headaches are prostrating in nature requiring her to be bed ridden for days at a time if necessary.”  The Board notes, however, that this description of the Veteran’s headaches is not consistent with the depictions of these headaches in the rest of the record, to include the contemporaneous VA and private medical records.

In addition, as noted above, the September 2018 VA examination report expressly found that the Veteran does not suffer prostrating headaches and that her headaches do not impact her ability to work.  The September 2020 VA examination report noted prostrating headaches averaging one every two months and found that these attacks are not very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability.  

Based on the above, the Board must find that entitlement to a rating in excess of 30 percent is not warranted for the Veteran’s headache disability at any portion of the appeals period.  

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

Musculoskeletal Disabilities

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45.  See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995).

Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  Joints are to be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if applicable, with the range of the opposite, undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  Estimates of additional functional impairment during flare-ups, if any, are also to be recorded, or an explanation with adequate rationale must be given as to why such estimates are not possible.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).

3. Entitlement to a higher initial rating for lumbar strain with degenerative arthritis, rated as 10 percent disabling prior to September 10, 2018, and as 20 percent disabling on and after that date, is denied.

The Veteran’s lumbar strain with degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237.

The General Rating Formula assigns a 10 percent evaluation for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 evaluation is warranted for forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

An evaluation of 40 percent is warranted when there is forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 

An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine.

Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating.  Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating.  38 C.F.R. § 4.71a, DCs 5235-5242.

Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992).  Note (5) in Diagnostic Codes 5235-5242 provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (2) (see also Plate V) explains that, for VA compensation purposes, normal flexion of the thoracolumbar spine is from zero to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees.  The normal combined range of motion, then, is 240 degrees and refers to the sum of the range of forward flexion, backward extension, left and right lateral flexion, and left and right rotation.

Because the General Formula is identical for all Diagnostic Codes pertaining to the spine other than for intervertebral disc syndrome (IVDS), consideration of other relevant diagnostic codes pertaining to the spine is not required.  See 38 C.F.R. § 4.71a, Codes 5235, 5236, 5238, 5239, 5240, 5241, 5242; see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

The Veteran in the case at hand has not been diagnosed with IVDS, and therefore consideration of the rating criteria that pertain exclusively to IVDS is not warranted.

Turning to the evidence of record, the Board has reviewed the Veteran’s VA and private medical records, and it notes that the complaints and treatment that are described in these records are consistent with the information that is contained in the VA examination reports and the Veteran’s lay statements.  

At her October 2010 VA examination, the Veteran reported that her back pain is triggered by prolonged walking, bending, and sitting.  She is able to perform her job but feels uncomfortable.  She did not use an assistive device.  She reported back pain that is uncomfortable and aggravated.  It is of moderate severity and lasts one to two days.  It occurs one to six days a week.  She is able to walk between one fourth of a mile and one mile.  

On examination, her posture and gait were normal.  In relevant part, there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reverse lordosis, or abnormal kyphosis.  Flexion was to 90 degrees on both active and passive range of motion.  Pain was from 75 to 90 degrees.  Extension was from 0 to 30 degrees on active and passive range of motion with pain at the end point.  Left and right lateral rotation were 0 to 30 degrees on both active and passive range of motion with pain at the end point.  Left and right lateral flexion were 0 to 30 degrees on both active and passive range of motion with pain at the end point.  There was no increased limitation of motion, either active or passive, or pain on repetitive use.  No pain, fatigue, weakness, or incoordination were noted on repetitive motion.  The back disability resulted in decreased mobility, problems with lifting and carrying, and pain.  Chores, travelling, recreation, and exercise were moderately affected.  

The September 2012 VA examination report notes that the Veteran reported that she experiences pain that is constant and shooting and that she can only walk slowly for ten minutes because of the pain in her spine.  She did not report flare-ups that impact function.  The range of motion testing section of the examination selects the box designated “Other, see the review.”  Later in the examination, it was noted that active and passive range of motion were from 0 degrees to 90 degrees.  Pain began at 90 degrees on both active and passive range of motion.  There was no additional loss of motion on repetitive use.  It was noted that the Veteran reported that she cannot flex during the range of motion examination, but she demonstrated that she can flex to 90 degrees when she bent over to view a box under the chair prior to the range of motion examination.  Therefore, the examiner noted that the Veteran’s flexion is to 90 degrees even though she did not comply with the range of motion test.  Extension and bilateral lateral flexion were noted to be from 0 to 20 degrees on active and passive range of motion with pain beginning at the end points.  Bilateral lateral rotation was noted to be from 0 to 30 degrees on active and passive range of motion with pain at the end points.  There was no additional loss of range of motion on repetitive use.  The examiner opined that the Veteran had displayed poor effort on the examination.  The examiner stated that, after reviewing the Veteran’s records, “it is likely that the veteran’s effort is poor rather than the exam is the factual reflexion of the physical pathology.”  

The September 2018 VA examination report notes that the Veteran reported that her back pain bothers her more than other disabilities.  She stated that she tries to manage her pain with medications, yoga, acupuncture, and injections.  The back pain is alleviated through acupuncture and injections, but the pain comes back.  The Veteran did not report experiencing flare-ups.  She reported functional loss or impairment, but the description of this functional loss pertains to her knee.  Initial range of motion was flexion from 0 to 90 degrees, extension from 0 to 25 degrees, left and right lateral flexion from 0 to 25 degrees, and left and right lateral rotation from 0 to 30 degrees.  The range of motion itself did not contribute to functional loss.  Pain was noted on examination but did not result in or cause functional loss.  Pain was noted on extension and left and right lateral flexion.  There was no evidence of pain with weight bearing.  There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue, with the Veteran reporting pain while the examiner palpated her muscles in her back, including paraspinal muscles.  There was no additional loss of function or range of motion after three repetitions.  The Veteran did not have guarding or muscle spasm.  There were no additional factors that contributed to disability.  There was no ankylosis of the spine.  The Veteran did not use any assistive devices.  With respect to functional impairment, it was noted that the Veteran cannot perform heavy lifting.  There was pain on passive range of motion testing but not when the joint is used in non-weight bearing.  Pain was experienced in the lumbar spine at 25 degrees of lateral bending bilaterally while standing and moving her torso.  She does yoga to keep loose and used to jog but could no longer do so because of a knee injury while jogging.  Back extension was limited to 25 degrees while weight bearing, but that limitation was due to age.  She reported pain at 25 degrees of back extension.  There was no estimated functional loss due to flares.  

The September 2020 VA examination report notes that the Veteran reported worsening of pain in the lower back during flare-ups.  She reported functional impairment in that she has difficulty running; walking, standing, or sitting for long periods of time; climbing ladders or stairs; and sleeping due to back pain.  Forward flexion was from 0 to 35 degrees, extension was from 0 to 15 degrees, and left and right lateral flexion and left and right lateral rotation were from 0 to 20 degrees.  Pain was noted on all planes of motion but does not result in or cause functional loss.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine.  The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion.  It was noted that pain significantly limits functional ability with repeated use over a period of time, with range of motion estimated as forward flexion from 0 to 35 degrees, extension from 0 to 15 degrees, and left and right lateral flexion and left and right lateral rotation from 0 to 20 degrees.  It was noted that pain significantly limits functional ability with flare-ups.  The examiner estimated that forward flexion would be from 0 to 35 degrees, extension from 0 to 15 degrees, and left and right lateral flexion and left and right lateral rotation from 0 to 20 degrees.  The Veteran had guarding or muscle spasm that did not result in abnormal gait or abnormal spinal contour.  It was noted that less movement than normal due to ankylosis, limitations, or blocking, adhesions, etc., also contributed to disability.  With respect to functional impact, it was noted that the Veteran’s condition impacts her ability to work in that she finds it difficult to run; walk/stand/sit for long periods of time; climb ladders/stairs; and sleep.  There was no objective evidence of pain on non-weight bearing.  Passive range of motion could not be performed or was not medically appropriate.  

The Board finds that a rating in excess of 10 percent is not warranted prior to September 10, 2018.  None of the above evidence reflects forward flexion limited to greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees, even during flare-ups or on repetitive use, and even when taking into account functional loss due to weakness, fatigability, incoordination, or pain on movement.  Nor does the above evidence reflect the presence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Therefore, prior to September 10, 2018, entitlement to a rating in excess of 10 percent is not warranted.

Nor is a rating in excess of 20 percent warranted at any point on or after September 10, 2018.  The above evidence does not reflect forward flexion to 30 degrees or less, even during flare-ups or on repetitive use, and even when taking into account functional loss due to weakness, fatigability, incoordination, or pain on movement.  Nor is there evidence of ankylosis of the spine.  Therefore, the Board finds that entitlement to a rating in excess of 20 percent at any point on and after September 10, 2018, is not warranted.

The Board notes that some of the rating criteria under 38 C.F.R. § 4.71a have recently changed, effective February 7, 2021.  There has been no substantive change to the criteria under which the Veteran is currently rated.  Thus, a higher rating is not warranted under the new rating criteria.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

4. Entitlement to a higher initial rating, increased from 0 percent to 20 percent, but no higher, for a left trapezius muscle strain is granted.  

The Veteran’s left trapezius muscle strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201.  

Ratings under Diagnostic Code 5201 differ depending on whether the dominant (major) or non-dominant (minor) extremity is being rated.  In this case, the Veteran is right-hand dominant, so her left upper extremity is rated as her minor extremity.

Under Diagnostic Code 5201, limitation of motion of the minor extremity at the shoulder level warrants a 20 percent rating.  Limitation of motion midway between the side and shoulder level warrants a 20 percent rating for the minor extremity.  Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity.  Id.

Under Diagnostic Code 5003, when limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Even in the absence of limitation of motion, actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The Veteran’s 10 percent rating prior to August 17, 2019, is based on noncompensable limitation of motion under Diagnostic Code 5003.  

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45.  See generally DeLuca v. Brown, 8 Vet. App. 202 (1995).

Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  Joints are to be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if applicable, with the range of the opposite, undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  Estimates of additional functional impairment during flare-ups, if any, are also to be recorded, or an explanation with adequate rationale must be given as to why such estimates are not possible.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Multiple April 2010 medical records note that the Veteran had left shoulder pain with forward flexion.  

A May 2010 medical record notes that the Veteran sought treatment for “Neck pain on left, in the trapezius on left, extends into Shoulder, increased by head movement, and by upright activity especially lifting - states the upper trap gets ‘tight.’”  The Veteran’s trapezius muscles were tender on palpation.

The July 2010 VA examination report notes that the Veteran reported that she has left shoulder pain two to three times per months, and that the pain lasts from one hour to one day.  She does stretching exercises for stiffness.  She uses no assistive devices.  Her condition has progressively worsened since onset.  She treats it with medication and has good response.  She reported pain and stiffness.  She denied deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, or other symptoms.  There have been no episodes of locking, subluxation, effusions, inflammation, or flare-ups.  This condition does not affect the motion of the joint.  On examination, there was tenderness to the trapezius.  A radiology report notes an impression of normal bilateral shoulders.

In a May 2011 statement, the Veteran reported that the pain in her shoulder goes down her left arm and worsens with movement.  

An August 2011 VA medical record notes that the Veteran has pain in her shoulders on range of motion.

A September 2011 VA medical record notes that the Veteran has full range of motion in all joints except the shoulders.

The September 2012 VA examination report notes that the Veteran did not report that flare-ups impacted the function of the shoulder.  The examiner indicated that the Veteran’s active range of motion was to 90 degrees with pain beginning and ending at 90 degrees.  (The examiner did not actually list the active range of motion, but given that the examiner noted that pain began and ended at 90 degrees, the Board infers that active range of motion was to 90 degrees.)  Abduction was from 0 to 90 degrees with pain beginning and ending at 90 degrees.  Internal and external rotation were from 0 to 45 degrees with pain beginning and ending at 45 degrees.  Passive range of motion was identical to active range of motion in all planes.  There was no additional loss of range of motion after repetitive use testing.  The examiner reported that the Veteran does not have any functional loss and/or functional impairment of the shoulder.  However the examiner noted that the Veteran does have pain on movement and has localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the left shoulder.  There was no guarding of the shoulder.

The September 2012 VA examiner noted that “Unless otherwise documented in the report: no objective evidence of pain on [range of motion] was noted, passive [range of motion] was unchanged from active [range of motion] and on repetitive testing, [range of motion] values were unchanged from baseline values reported and no pain, fatigue, weakness or incoordination was noted.”  The examiner noted that there was “ no edema or erythema of the infraspinatus muscles, no sign of subacromial impingement or subluxation of the rotator cuff or tenderness, however subjective tenderness through out [sic] the entire muscle joints on direct exam, but indirect exam indicates the tenderness is not as severe as the veteran’s subjective report on this exam.”  The examiner noted that “The veteran’s subjective complaints during the examination appeared, to this examiner, out of proportion to objective exam findings.  The veteran was noted to display poor effort during the examination in this examiner’s opinion.”  The examiner noted that a July 2010 radiology report showed normal bilateral shoulders.  The assessment was bilateral shoulder joint strain.  

An addendum opinion was obtained in January 2014 to address some of the questions that were raised in the September 2012 VA examination report.  Specifically, the examiner was asked whether the range of motion results are valid for rating purposes, given that the Veteran’s complaints appeared to be out of proportion to the objective findings.  She responded that “It is difficult to know since the exam is very poor quality due to the veteran’s lack of cooperation, unreliable exam cannot be used for a rating purpose in my opinion.”  She was asked whether the shoulder strain is a progression of the left trapezius muscle strain, and responded that such a relationship is “Unlikely.”  Finally, she responded “yes” in response to a question of whether “the Veteran [had] OBJECTIVE findings of painful motion for the left side.”

A September 2018 VA examination report notes that the Veteran reported that a tight feeling continued in her shoulder and she continued to feel tightness in her muscles most of the time.  She did not report flare-ups.  She did not report having any functional loss or functional impairment of the joint.  Range of motion was all normal and no pain was noted on examination.  There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft issue in that she reported tenderness over the trapezius.  There was no objective evidence of crepitus.  There was no additional functional loss or loss of range of motion after three repetitions.  There was no ankylosis.  There were no significant diagnostic test findings or results.  The left trapezius disability did not impact the Veteran’s ability to perform any type of occupational task.  There was no evidence of pain on passive range of motion or when the joint is used in non-weight bearing.  

The Board finds that a 20 percent rating, but no higher, is warranted for the entire appeals period based on painful motion.  Sowers v. McDonald, 27 Vet. App. 472 (2016).  The Board notes that, at times, the evidence demonstrates that the Veteran has painful motion, but at other times it does not.  Based on the Veteran’s consistent statements concerning left shoulder pain on movement and the medical evidence of record throughout the appeals period, the Board will resolve reasonable doubt in the Veteran’s favor and will grant a minimal compensable rating.  As noted above, Diagnostic Code 5201 provides a minimal compensable rating of 20 percent for limitation of motion of the shoulder.  Thus, a 20 percent rating is warranted.  

The Board finds, however, that a rating in excess of 20 percent is not warranted.  As noted above, where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity.  None of the above evidence even suggests such limitation.  Thus, a 30 percent rating is not warranted.  

As noted above, the rating criteria of 38 C.F.R. § 4.71a were recently changed, effective February 7, 2021.  There has been no change to the criteria for a rating in excess of 20 percent.  Thus, a higher rating is not warranted under the new rating criteria.

The Board has considered whether entitlement to an even higher rating is warranted.  To that end, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against awarding a rating in excess of 20 percent, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, entitlement to a rating in excess of 20 percent for left trapezius muscle strain must be denied.

5. Prior to September 10, 2018, entitlement to an increased initial rating from 0 percent to 10 percent, but no higher, for left foot plantar fasciitis is granted.

6. On and after September 10, 2018, entitlement to an initial rating in excess of 10 percent for left foot plantar fasciitis is denied.

The Veteran’s plantar fasciitis is rated by analogy as flatfoot under 38 C.F.R. § 4.71a, Diagnostic Code 5276.  This diagnostic code assigns a 0 percent rating for mild flatfoot, with symptoms relieved by built-up shoe or arch support.

A 10 percent rating is assigned for moderate flatfoot, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, either bilateral or unilateral.  A 20 percent rating compensates for unilateral symptoms and a 30 percent rating compensates for bilateral symptoms of severe flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent rating is provided for unilateral symptoms and a 50 percent rating for bilateral symptoms of pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

Words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.

The Board will also consider Diagnostic Code 5284, Foot Injuries, Other.  See Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019).  Under Diagnostic Code 5284, the criterion for a 10 percent rating is a moderate foot injury.  The criterion for a 20 percent rating is a moderately severe foot injury.  The criterion for a 30 percent rating, the maximum schedular rating under Diagnostic Code 5284, is a severe foot injury.  Actual loss of use of the foot is rated at 40 percent.  A “severe” disability under Diagnostic Code 5276 is not equivalent to a “severe” disability under Diagnostic Code 5284.  See Prokarym v. McDonald, 27 Vet. App. 307, 312 (2015).

(The Board notes that, because these rating criteria are not based on range of motion, it need not consider whether a minimum compensable rating is warranted under 38 C.F.R. § 4.59.)

The Veteran has stated on multiple occasions that she has left foot pain.  (See, e.g., personal statements dated in October 2010, May 2011, September 2011, July 2012, and August 2012.)  She testified at her Board hearing that she can walk for about five minutes before her feet hurt. (See Board hearing transcript, pages 5-6.)  

The July 2010 VA examination report notes that the Veteran reported that her foot pain is worse with prolonged walking.  On examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, or other symptoms.  There was no objective evidence of pain on palpation of the anteromedial aspect of the heel, with passive dorsiflexion of the toes nor when having the Veteran standing or walking on the toes.  No tightness in the Achilles was noted.  The examiner noted that there was currently no clinical evidence of acute plantar fasciitis.  The disability results in decreased mobility and pain.  There were moderate problems with performing chores, shopping, exercise, recreation, and travelling.  

She also sought treatment for foot pain on many occasions after service.  (See, e.g., medical records dated in July 2010, September 2010, March 2011, April 2011, June 2012, June 2018, October 2018, March 2019, June 2019, July 2019, October 2019, December 2019, and July 2020.)

A February 2011 VA medical record notes that the Veteran “[h]as received orthotics and doing stretching exercises without improvement.  Podiatry referral made.”

An October 2011 VA medical record notes that the Veteran has tingling and numbness with shoe inserts.

She underwent physical therapy for her bilateral plantar fasciitis in 2011.  

The October 2012 VA examination report notes that the Veteran had a normal medial longitudinal arch in the standing position.  The heel was in neutral position without varus or valgus deformity.  There was no malalignment of the Achilles tendon, and no pain on palpation or manipulation of the tendon was noted.  Inspection of the plantar aspect of the foot demonstrated high arches of the bilateral feet without any callus formations.  Pain on active or passive manipulation was somewhat subjective and unreliable.  The assessment was bilateral pes cavus.  There was also an assessment of status post fascia release, but it was for the right heel and not the left heel.

A January 2017 VA medical record notes that the Veteran jogs and walks with her husband without limitation.

The September 2018 VA examination report notes that the Veteran has a lot of heel pain, noting that she reported tightness under the back of her foot that bothers her daily consistently.  She did not report having any functional loss or functional impairment of the foot.  It was noted that she does not have pain on use or manipulation of the feet.  There was no indication of swelling on use.  She did not have characteristic calluses.  She did not have extreme tenderness of the plantar surface.  She did not have decreased longitudinal arch height on weight-bearing.  There was no objective evidence of marked deformity.  The weight-bearing does not fall over or medial to the great toe.  There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line.  The Veteran did not have inward bowing of the Achilles tendon.  The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot.  It was noted that the Veteran has a nonservice-connected bone spur on one of her heels of mild severity.  The foot conditions do not require arch supports, custom orthotic inserts, or shoe modifications.  There was pain on physical examination.  There was no functional loss for the left lower extremity attributable to this condition.  There was no pain, weakness, fatigability, incoordination, or other functional loss that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to this disability.  The Veteran did not use any assistive devices as a normal mode of locomotion.  There was no functional impairment such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis.  This disability did not impact the Veteran’s ability to perform any type of occupational task, such as standing, walking, lifting, and sitting.  

As noted above, a 10 percent rating is assigned for moderate flatfoot, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, either bilateral or unilateral.  The Board finds that, throughout the appeals period, the Veteran’s left foot plantar fasciitis more closely approximates the criteria to be considered moderate rather than mild.  She regularly sought treatment for foot pain caused by plantar fasciitis and underwent physical therapy for this condition in 2011.  The Board thus finds that the Veteran’s left foot plantar fasciitis is more severe than contemplated by the 0 percent rating criteria, which applies to mild disability with symptoms relieved by built-up shoe or arch support.  Thus, the Board finds that an increased rating, from 0 percent to 10 percent, is warranted for left foot plantar fasciitis.  

The Board also finds that a rating in excess of 10 percent is not warranted at any point during the appeals period.  The above evidence indicates that the Veteran’s left foot plantar fasciitis does not manifest in any of the criteria that are enumerated in Diagnostic Code 5276.  Specifically, there is no objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  Thus, the Board finds that entitlement to a rating in excess of 10 percent is not warranted.

The Board has considered additional diagnostic codes, including Diagnostic Code 5284, for the Veteran’s plantar fasciitis.  Diagnostic Code 5284 provides a 10 percent rating for moderate foot disability, a 20 percent rating for a moderately severe foot disability, and a 30 percent rating for severe foot disability.  The Board notes that the Veteran’s plantar fasciitis is manifested mainly by pain on use.  The most common symptom of plantar fasciitis is heel pain.  See also Fenderson v. West, 12 Vet. App. 119, 122 (1999) (defining plantar fasciitis as inflammation of the sole of the foot, associated with eosinophilia, edema, and swelling) (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 609-10, 1300 (28th ed. 1994)).  Pes planus similarly may cause pain on the soles of the feet, specifically in the heel and arch.  The Veteran’s complaints of pain closely track the symptomatology associated with pes planus under Diagnostic Code 5276.   Therefore, the Board finds that evaluation of the Veteran’s left foot disability under Diagnostic Code 5276 is most appropriate.

As noted above, the rating criteria of 38 C.F.R. § 4.71a were recently changed, effective February 7, 2021.  In relevant part, this change adds a Diagnostic Code 5269 for plantar fasciitis.  Under this diagnostic code, a 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, bilateral.  A 20 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, unilateral.  Otherwise, a 10 percent rating is warranted.  Note (2) to this diagnostic code states that “If a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable.”  

In the case at hand, a June 2018 VA medical record notes that the Veteran received a cortisone shot for plantar heel pain.  A September 2018 VA medical record indicates that this shot helped her for about three months.

A March 2019 VA medical record notes that the Veteran “is here for a visit for chronic heel pain [that] has been unresponsive to most all treatments known to man kind.”  The Veteran and the doctor reviewed the options, and she elected to have surgery.  Subsequent VA medical records reflect that the Veteran was scheduled for bilateral plantar fasciitis surgery in June 2019.  A June 2019 VA medical record notes that the Veteran was going to undergo “extracorporeal shockwave treatment, also known as ESWT, [which] is a non-invasive, non-surgical treatment option for the intense, persistent heel pain associated with chronic plantar fasciitis.”  The Veteran underwent this procedure in June 2019.

The record does not reflect that the Veteran has been recommended for surgical intervention but was not a surgical candidate.  Therefore, the Board finds that entitlement to a rating in excess of 10 percent is not warranted.  

In short, the Board finds that entitlement to an increased rating, from 0 percent to 10 percent, is warranted for left foot plantar fasciitis prior to September 10, 2018, and that entitlement to a rating in excess of 10 percent is not warranted during any portion of the appeals period.

The Board has considered whether entitlement to an even higher rating is warranted.  To that end, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against awarding a rating in excess of 10 percent, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, entitlement to a rating in excess of 10 percent for left foot plantar fasciitis must be denied.

Scars

The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  During the pendency of this appeal, the rating criteria for scars were amended in August 2018.  VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824.  See 38 C.F.R. § 4.118 (2018).  The Veteran’s scarring is not rated under any of these diagnostic codes.

In the case at hand, the Veteran’s left wrist, right wrist, and right foot scars are each rated as 0 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804.

Under this diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118.

7. Entitlement to an initial compensable rating for carpal tunnel release scar of the left wrist is denied.

8. Entitlement to an initial compensable rating for carpal tunnel release scar of the right wrist is denied.

9. Entitlement to an initial compensable rating for plantar fascia release scar of the right foot is denied.

The Veteran underwent VA examinations in connection with these claims in July 2010, October 2012, and September 2018, and an addendum to the October 2012 opinion was obtained in January 2014.  

The July 2010 VA examination report notes that the left wrist scar has a maximum width of 0.3 centimeters and a maximum length of 2.5 centimeters.  It notes that the right wrist scar has a maximum width of 0.1 centimeters and a maximum length of 2.5 centimeters.  It notes that the right foot scar has a maximum width of 0.1 centimeters and a maximum length of 2.5 centimeters.  The scars were not non-linear.  The examination report contains the following notation: “For each scar, unless otherwise stated: PAIN ON PALPATION: No/Yes.”  It notes that the scars are not unstable and do not result in limitation of motion or loss of function.  There was no underlying soft tissue damage or loss.  

VA medical records dated in 2011 reflect that the Veteran was receiving physical therapy for right foot scar tissue from her right foot plantar fascia surgery.  The Board notes that this scar tissue is different from the right foot scar that is being rated herein.  (Specifically, the Board notes that the therapy that has been described in these records pertains to underlying scar tissue, not to the scar that is on the surface of her skin.)  However, an October 2011 VA medical record notes that the “plantar fascial scar … is only mildly adhered.”

The October 2012 VA examination report notes that the Veteran has three painful scars.  In the remarks section, the examiner noted that “The tenderness is focalized at the scar which is located at the bilateral palm, and the pain is directly linear from the scar to the 4th fingers bilaterally.”  The left carpal tunnel release scar was noted to be 3 centimeters by 0.2 centimeters, and the right carpal tunnel release scar was noted to be 4 centimeters by 0.2 centimeters.    The examiner noted that the Veteran “states that her right heel scar is very tender.”  The right heel scar was difficult to see due to lack of scar formation, but it was approximately 2 centimeters long.  The examiner stated that “This exam is also questionable, because the Veteran states that she is tender to palpation involving the total body on other exam (see fibromyalgia DBQ [Disability Benefits Questionnaire), but on the scar exam, the tenderness is isolated to the scars.”  

The examiner was asked to provide an addendum opinion to the October 2012 VA examination report.  In the clarification request, the examiner was asked to clarify whether there was objective evidence of pain on the October 2012 examination, as the examiner had reported there was pain but implied in the remarks section that the Veteran had merely stated that they were painful.  The clarification request also noted that “The examiner stated that the exam was questionable because you stated that you were tender to palpation involving the total body on other exam (for example – fibromyalgia DBQ), but on the scar exam, the tenderness was reportedly isolated to the scars.”  The examiner was expressly asked “Are the bilateral carpal tunnel release scars, well hea[l]ing right heel fascia release scar, and well healed [P]fannenstiel incision scar OBJECTIVELY painful?”

In January 2014, the examiner provided a response to the clarification request.  The examiner noted that the Veteran’s pain response on the fibromyalgia examination did not meet the America Rheumatology Society’s definition of “tenderness.”  She further noted that, “However, getting to you[r] question, when I answer[ed] the Scar DBQ questions, the answers [were] only restricted to the scars, not the total body tenderness pertaining to the fibromyalgia exam.”  The examiner answered “NO” in response to the question “Are the bilateral carpal tunnel release scars, well hea[l]ing right heel fascia release scar, and well healed [P]fannenstiel incision scar OBJECTIVELY painful?”

The February 2017 Board hearing transcript reflects that the Veteran expressly reported that her carpal tunnel and plantar fasciitis scars are tender all of the time.  (See Board hearing transcript, page 6.)

The September 2018 VA examination report notes that the skin and scars were soft to touch with no underlying tissue involved.  None of the scars was painful, and none were unstable, with frequent loss of covering of the skin over the scar.  The left upper extremity scar was 3 cm by 0.1 cm.  The right upper extremity scar was 4 cm by 0.1 cm.  The right lower extremity scar was 4 cm by 0.1 cm.  None of the scars resulted in limitation of function, to include limitation of motion.  None of the scars impacted her ability to work.  The examiner noted that “[All] of the scars were non-tender to palpation, and well healed with NO underlying soft tissue involvement.”  

Based on the above, the Board finds that entitlement to a compensable rating for scarring is not warranted.  The Board observes that the July 2010 VA examination report is inconclusive in its statement that “For each scar, unless otherwise stated: PAIN ON PALPATION: No/Yes.”  However, the subsequent examination reports (consisting of the January 2014 addendum to the October 2012 VA examination report and the September 2018 VA examination report) clearly state that there is no objective evidence of pain on palpation.  

As noted above, the Veteran has asserted that the scars themselves are painful, rather than just the general area.  However, the October 2012 VA examination report characterized the Veteran’s report of painful scars at that examination as “questionable, because the Veteran states that she is tender to palpation involving the total body on other exam (see fibromyalgia DBQ), but on the scar exam, the tenderness is isolated to the scars.”  When asked to reconcile these contradictory indications, the January 2014 addendum opinion ultimately determined that the Veteran’s scars themselves were not painful.  The Board finds this opinion, as well as the subsequent September 2018 examination report, to be more credible than the Veteran’s own assertions of painful scarring, which were not confirmed on objective examination, given the complexity of the matter.  

Moreover, the Board notes that there are no reports of one or more unstable scars, and the medical evidence of record states that none of the scars is unstable.  

In short, in the absence of painful and/or unstable scarring, entitlement to a compensable rating is not warranted under Diagnostic Code 7804.

The Board has also considered whether a separate rating or ratings are warranted under another diagnostic code.  

As noted above, Note (3) of Diagnostic Code 7804 states that scars rated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also be rated under Diagnostic Code 7804.  The Board has therefore considered whether a separate rating may be awarded under one of these diagnostic codes.  

First, the Board notes that Diagnostic Code 7800 does not apply in this case, as that rating pertains to burn scars or disfigurement of the head, face, or neck.  

Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not on the head, face, or neck, that are deep and nonlinear.  In this case, the Veteran does not have deep or nonlinear scars.  

Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not on the head, face, or neck, that are superficial.  Any scarring on the Veteran’s left wrist, right wrist, and right foot is superficial rather than deep.  However, in order to receive a compensable rating, such scarring must cover at least 144 square inches (929 square centimeters).  In this case, the Veteran’s scar does not approach covering such a large area.  Therefore, a 10 percent rating is not warranted.  

Finally, the Board has considered whether a separate rating is warranted for functional impairment under Diagnostic Code 7805.  The Board finds that the above evidence reflects no additional functional impairment specifically due to scarring.  Such a finding is expressly found in the July 2010 and September 2018 examination reports, which are not contradicted by the remaining evidence of record.  Therefore, entitlement to a separate compensable rating or ratings under Diagnostic Code 7805 is not warranted.  

In short, the criteria for a compensable rating for carpal tunnel release scar of the left wrist, carpal tunnel release scar of the right wrist, and/or plantar fascia release scar of the right foot is denied.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, the claims are not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claims must be denied. 

Service Connection

Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In claims involving musculoskeletal disabilities, pain resulting in functional impairment may constitute a disability, even without an identifiable underlying pathology, when there is functional impairment in earning capacity.  Saunders v. Wilkie, 997 F.3d 1356, 1368 (Fed. Cir. 2018).

Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii).  In the case at hand, the Veteran has qualifying service under 38 C.F.R. § 3.317(e).

10. Entitlement to service connection for residuals of a TBI, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

At the February 2017 Board hearing, the Veteran’s accredited representative noted that “[I]t is tough to separate [the TBI claim] from the headaches and psychological.”  The Board notes that service connection is already in effect for headaches and depression.  In addition, the Board notes that service connection is in effect for vertigo.  Thus, the Veteran is already being compensated for her headaches, depression, and vertigo, and those disabilities are not encompassed by the current service connection claim.

The Veteran contends that she suffered a head injury when she was hit in the head by her locker cover when stationed aboard the USS Kitty Hawk.  (See May 2011 personal statement.)  She reported that she had a knot on her head and has headaches ever since.  (See May 2011 personal statement.)    

Review of the Veteran’s service treatment records reflect that the Veteran served aboard the USS Kitty Hawk from January 2003, and her next assignment began in January 2006.  Thus, the Board surmises that the Veteran’s reported head injury would have occurred sometime between January 2003 and January 2006.

Her head was clinically normal when examined in August 1988, December 1994, January 1996, March 2001, and November 2009.  (There are no medical examination reports that indicate a clinical abnormality of the head.)

She expressly denied any history of, or current, head injury on medical history reports dated in August 1988, December 1994, January 1996, July 1996, March 2001, July 2002, April 2006, and August 2009.  (There are no medical history reports on which the Veteran reported having ever had a head injury.)

A February 1998 service treatment record notes that the Veteran sought treatment for a viral syndrome after she fell at home.  It was noted that she had a momentary loss of consciousness 2 days ago, striking her head on a wall and slumping to the ground.  Her husband picked her up immediately and she regained consciousness. (She told him before she lost consciousness that she was going to fall.)  Since then, she has had right neck pain and felt light headed, even while sitting. 

An October 2001 service treatment record notes that the Veteran was seeking treatment for what was assessed as “Headaches – suspect tension/anxiety-related.”  

The service treatment records do not otherwise reflect that the Veteran reported or sought treatment for a head injury in service.  

Post-service, a May 2010 medical record reflects that the Veteran sought treatment for neck pain and headaches.  That record expressly notes that the Veteran “has had a long history [of] neck pain and [headaches] (10+ yrs) – no direct trauma.”  

A September 2010 VA TBI screening record notes that the Veteran had not already been diagnosed as having TBI during OIF/OEF deployment.  It was noted that she did not suffer a TBI before or after deployment.  It was noted that the Veteran suffered a head injury in 2002.  It was noted that the Veteran did not lose consciousness and that the longest period of disorientation or confusion was 30 minutes.  It was noted that she has not had prior TBI treatment.  It was determined that the history of the injury and the course of clinical symptoms were not consistent with a diagnosis of a TBI sustained during OEF/OIF deployment.  It was noted that the Veteran experienced the following events during deployment: “Blast or explosion IED (improvised explosive device), RPG (rocket propelled grenade), Land Mine, Grenade, etc.” and “Vehicular accident/crash (any vehicle, including aircraft).”  It was noted that she had the following symptoms immediately afterwards “Head Injury.”  It included a list of symptoms that began or worsened afterwards, as well as a list of problems that she was currently experiencing.  The TBI screening was positive.  

An October 2010 VA medical record notes that the Veteran needs to be scheduled for a TBI follow-up appointment.  A December 2010 VA medical record notes that the Veteran has a history of “Grade I concussion with minimal alteration of consciousness from blunt head trauma on board ship in 2002.”

An April 2011 medical record notes that the Veteran suffered a TBI in 2002.  

The Veteran underwent a VA initial TBI residuals examination in September 2012.  The resulting examination report states that the Veteran does not have and has not ever had a TBI or any TBI residuals.  The Veteran described her injury as having occurred when “she opened her locker and the ship rocked and the locker fell on her head.  She reported that “she [saw] stars but had no [loss of consciousness].  This was in 2002 she thinks.  She had no permanent problems from this and is not sure when her headaches began.”  Each area that was tested was found to be normal, and the Veteran was noted not to have any residuals.  Neuropsychological testing was not performed.  

It was also noted that “The Veteran is claiming that her residual, traumatic brain injury was incurred in or caused by incident where she fell back and hit her head against a wall, February 16, 1998.”  The examiner noted that review of the service treatment records reflect that the “Veteran reported falling against wall and hitting her head, February 19, 1998.”  

The examiner described the February 1998 service treatment record.  He also noted that nothing on her separation examination suggests TBI or residuals of TBI.  He noted that she has had the vertigo for less than 10 years and that it is helped by medication, she has daily migraines, no period of unconsciousness or concussion, no memory loss or amnesia, no trouble sleeping or nervous disorder, and no head injury.  

The examiner opined that there is no evidence of a TBI or residuals of TBI, and therefore an etiology opinion was not warranted.  In the rationale, the examiner noted that the February 1998 episode appeared to be a viral syndrome with a syncopal episode.  She struck her head but there is no evidence of a TBI or anything suggestive of residuals of TBI.  

In its February 2018 remand, the Board noted that an opinion was required with respect to whether any of the Veteran’s reported symptoms of TBI were related to her Gulf War service.  

The Veteran underwent a VA initial evaluation of TBI examination in September 2020.  The resulting examination report opined that the Veteran currently has or has in the past had a TBI or any TBI residuals.  The examiner listed a diagnosis date of October 19, 1998.  

The medical history section of the examination report describes her reported head injury as follows:

[The Veteran] had a single episode in which she struck her head aboard ship.  This occurred 10/19/1998 when she states that the lid on her bunk tipped when the ship healed and struck her on the top of the head.  She states that she ‘saw stars’ and felt dizzy afterwards but did not lose consciousness.  The dizziness lasted approximately a week and then resolved.

The examination report then describes the Veteran’s subsequent symptoms, noting in relevant part that the Veteran “occasionally will have soreness and tenderness on the top of her head….  She has infrequent headaches.”  It was noted that the Veteran was involved in a motor vehicle accident in 2014 but did not suffer a head injury.  With respect to the “[c]ourse of the condition since onset, it was noted that the Veteran’s TBI “[r]esolved, has post-traumatic headache.”  In response to the prompt to list “[c]urrent symptoms (or state if the condition has resolved),” the examiner noted that “[s]ymptoms resolved.”  All of the areas that were tested were normal.  These areas consisted of memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity (with intact motor and sensory system); visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.  With respect to residuals, the examiner noted that the Veteran experiences “Headaches, including Migraine headaches.”  There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms.  It was noted that the Veteran’s TBI claim is supported by “Any loss of memory for events immediately before or after the injury (post-traumatic amnesia (PTA)),” and the examiner again noted that the Veteran “States that she ‘saw stars’ and felt dizzy afterwards but did not lose consciousness.  The dizziness lasted approximately a week and then resolved.”

In response to the examination request, the examiner noted that the Veteran’s disability pattern is “A disease with a clear and specific etiology” rather than an undiagnosed illness; a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; or a diagnosable chronic multi-symptom illness with a partially explained etiology.  The examiner opined that it is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia.  In his rationale, the examiner noted that “The veteran’s condition is due to Accident aboard ship 10/19/1998, and therefore less likely than not due to a specific exposure event experienced by the veteran during service in southwest Asia.”  The examiner was asked to determine the nature and etiology of any symptoms that the Veteran contends are manifestations of a TBI.  The examiner noted that the Veteran “[d]id not have concussion but felt dizzy for a week after she struck top of head on bunk lip.  Resolved.”  The examiner opined that there is no relationship between fibromyalgia and TBI.  Finally, the examiner opined that the Veteran has “[n]o current symptoms related to TBI.  Headaches are post-traumatic.”  

The Board finds this opinion to be highly probative, as it was authored by a neurologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1).  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  It is based on review of the record and interview and examination of the Veteran.  The examiner provides a rationale that is supported through citation to the record and a discussion of the facts of the case.

The Board acknowledges the Veteran’s contentions regarding having suffered a head injury when she was hit in the head by a locker lid while aboard a ship.  However, the service treatment records do not note such an injury.  The Veteran’s service treatment records do show that she hit her head on a wall when she fainted while suffering from a viral syndrome.  However, her service treatment records do not show that she was diagnosed with a TBI from that injury.  In any event, the September 2020 VA examiner considered the Veteran’s report of having suffered a TBI when hit by a locker lid and noted that the Veteran currently suffers from headaches.  Otherwise, the VA examiner found that that disability resolved and there are no residuals of any such injury.  The Board notes that service connection is already in effect for headaches and vertigo.  At her September 2020 examination, the Veteran did not identify any additional symptoms of disability that she believes are due to a TBI.  Therefore, the Board finds that the Veteran does not have any residuals of a TBI that are, in fact, attributable to an undiagnosed illness; a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; or a diagnosable chronic multi-symptom illness with a partially explained etiology.  

As noted above, a December 2010 VA medical record notes that the Veteran has a history of “Grade I concussion with minimal alteration of consciousness from blunt head trauma on board ship in 2002,” and an April 2011 medical record notes that the Veteran suffered a TBI in 2002.  

As noted above, the Veteran’s service treatment records do not corroborate her account of a shipboard head injury.  In addition, the Board notes that these records constitute transcriptions of the Veteran’s own reported medical history, not a medical determination of TBI.  A bare transcription of lay history does not become competent medical evidence merely because the transcriber is a medical professional.

The only remaining contrary opinion comes from the Veteran herself.  The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess.  Specifically, even aside from the issue of whether the Veteran suffered a head injury in service, the Veteran is not competent to diagnose TBI residuals.

In short, the Board finds that entitlement to service connection for residuals of TBI is not warranted.

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

11. Entitlement to service connection for a right elbow disability, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied.

The Veteran contends that she suffers from current elbow impairment that is related to service.  She contends that elbow pain shoots to her head and down to her left foot.  (See May 2011 personal statement.)

The Veteran’s August 2012 personal statement suggests that she believes her elbow complaints are symptoms of her fibromyalgia.  Service connection is already in effect for fibromyalgia, and thus the issue on appeal does not contemplate fibromyalgia.  To the extent that the Veteran contends that her elbow symptoms are related to her Gulf War service, that benefit (in the form of service connection for fibromyalgia) has already been granted and need not be discussed further at this time.  

Turning to the evidence of record, the Veteran’s service treatment records reflect that her upper extremities were clinically normal when examined in August 1988, December 1994, January 1996, March 2001, and November 2009.  (There are no medical examination reports that indicate a clinical abnormality of the upper extremities.)

She expressly denied any history of, or current, painful or trick elbow on medical history reports dated in August 1988, December 1994, January 1996, July 1996, March 2001, July 2002, and April 2006.  While she did endorse a history of, or current, “Painful shoulder, elbow, or wrist (e.g. pain/dislocation, etc.), she explained on the following page that she was referring to her carpal tunnel syndrome.  (There are no medical history reports on which the Veteran reported having ever had a painful or trick elbow.)  

A November 2004 service treatment record reflects that the Veteran sought treatment after having had right elbow pain for two weeks.  The assessment from that record raised the possibility that this pain was due to an overuse injury or tendonitis, or it could be related to her carpal tunnel issues.  An April 2010 record notes that the Veteran’s elbows showed no abnormalities on examination.  Otherwise, the service treatment records contain no complaints of, or treatment for, the Veteran’s right elbow during service.

The Veteran’s VA medical records reflect that she reported elbow pain in May 2011 and April 2013, but no right elbow diagnosis is given.

The Veteran underwent a VA joints examination in July 2010.  The resulting examination report reflects that the Veteran “Claims BOTH elbows hurt, [left greater than right].  Says woke up with [left] elbow pain one day, sought medical care, was told it was ‘tendonitis or arthritis’, treated symptomatically.”  She reported that she has pain two to three times per week and lasts a few hours.  It was noted that the condition has gotten progressively worse.  It was noted that there is no history of trauma to the joints.  

On physical examination, there was elbow pain.  There was no deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation locking episodes, effusions, symptoms of inflammation, or flare-ups.  The motion of the joint was not affected and there were no other symptoms.  The examiner found that the Veteran’s elbow was normal.  A July 2010 radiology report lists an impression of “Negative bilateral elbows.”  The “Diagnosis” was “Normal RT elbow exam.”  

The Veteran next underwent VA elbow and forearm conditions examination September 2020.  The resulting examination report diagnoses left elbow lateral epicondylitis, but it does not diagnose a right elbow disability.  With respect to relevant medical history, the Veteran described left elbow pain that began in the early 2000s but did not describe any right elbow symptoms.  The examiner noted that the Veteran did not report having any functional loss or functional impairment.  Range of motion was normal with no pain noted on examination.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  There was no evidence of pain with weight bearing and no objective evidence of crepitus.  There was no additional loss of function or range of motion on repetitive use testing.  It was noted that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time or flare-ups.  There were no other factors that contribute to disability.  There was no objective evidence of pain when used in non-weight bearing.  Passive range of motion was the same as active range of motion with no objective evidence of pain.  

The VA examiner provided an etiology opinion with respect to the left elbow epicondylitis, as no right elbow disability was diagnosed.  (He noted in the Remarks section that “Veteran states left elbow, and not right elbow … this is GW gen med exam to I switched to other side.”)  However, the Board is only adjudicating a claim of entitlement to service connection for a right elbow disability.  Therefore, the Board need not discuss the examiner’s response to these questions.  

The Board finds these opinions to be highly probative, as they were authored by individuals who possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1).  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  They are based on review of the record and interview and examination of the Veteran.  

The only remaining contrary opinion comes from the Veteran herself.  The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess.  Specifically, the Board finds that the Veteran does not possess the necessary expertise to diagnose a current right elbow disability. 

There is no current disability and no persuasive evidence of symptoms that resulted in any functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity).  In the absence of a current disability and in functional impairment in earning capacity, entitlement to service connection for a right elbow disability is not warranted.  

The Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, the claim is not in equipoise.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the claim must be denied.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Elizabeth Jalley, 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.