Citation Nr: 21015589 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-03 612 DATE: March 17, 2021 ORDER Entitlement to an initial rating in excess of 20 percent disabling for lumbar spine disability is denied. Entitlement to an initial rating in excess of 20 percent disabling for right shoulder disability is denied. Prior to December 24, 2019, entitlement to an initial 10 percent rating, but no higher, for residual scars associated with post-spinal fusion is granted subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for residual scars associated with post-spinal fusion is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for bilateral hip disability is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s lumbar spine disability was not manifested by forward flexion limited to 30 degrees or less, ankylosis, or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. 2. Throughout the period on appeal, the Veteran’s right shoulder disability has been shown to be manifested by pain with range of motion limited to, at worst, 100 degrees abduction. 3. Throughout the period on appeal, the Veteran’s residual scars associated with post-spinal fusion has been manifested by no more than two painful, but not unstable, scars. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a rating in excess of 20 percent disabling for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5003, 5243. 2. Throughout the period on appeal, the criteria for an initial rating in excess of 20 percent disabling for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5019, 5200 to 5203. 3. Prior to December 24, 2019, the criteria for an initial 10 percent rating, but no higher, for residual scars associated with post-spinal fusion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.73, DC 5312, 4.118, DCs 7804, 7805. 4. The criteria for a rating in excess of 10 percent disabling for residual scars associated with post-spinal fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.73, DC 5312, 4.118, DCs 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to December 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In May 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. The Board notes that the requested VA examinations were obtained in December 2019 and have been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a July 2020 rating decision granted service connection for bilateral hearing loss. Therefore, as the AOJ granted the benefit sought on appeal, that issue is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). The July 2020 rating decision also granted an increased rating for right shoulder disability of 20 percent, effective January 1, 2012, and an increased 10 percent rating for scars effective December 24, 2019. As those ratings are not the maximum allowable, those issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that a supplemental statement of the case (SSOC) was issued in July 2020. A review of the SSOC does not reveal that the Veteran’s representative was provided with a copy of that document. However, the Board notes that the Veteran’s representative specifically referenced the July 2020 SSOC in the January 2021 Appellant’s Post-Remand Brief. Therefore, as the record clearly shows that the representative has received and reviewed the July 2020 SSOC, remanding this matter solely for purpose of providing the representative with a copy of the SSOC would serve no useful purpose. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). 1. Lumbar Spine Disability The Veteran filed a service connection claim for lumbar spine disability in October 2011. That claim was granted in a July 2012 rating decision and assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.71a, DC 5237; effective January 1, 2012 (the day following separation from service). The Veteran has appealed the initial rating. The Board notes that from November 1, 2016 to December 31, 2016, a temporary 100 percent disability rating has been assigned. That rating is not on appeal. During the period on appeal, the Veteran underwent a VA lumbar spine examination in November 2011. The Veteran reported limitation in walking, stiffness, fatigue, muscle spasms, decreased motion, paresthesia and numbness. He denied any bowel problems or erectile dysfunction. He did report a bladder problem in which he urinated 7-8 times per day and 3 times per night. Pain was reported in the pelvic region and occurred constantly with pain traveling to the leg and foot. The examiner noted no evidence of pain radiating on movement. A muscle spasm was present which did not result in an abnormal gait. Tenderness was also noted along the paralumbar muscles and interspaces. No guarding of movement was found. No ankylosis was found. ROM testing revealed flexion to 50 degrees with pain beginning at 35 degrees, and extension to 10 degrees with pain beginning at 5 degrees. Following repetitive use testing, flexion decreased to 40 degrees with pain beginning at 10 degrees. Extension remained the same with pain beginning at 0 degrees. The examiner noted that following repetitive use, the lumbar spine was additionally limited by pain and lack of endurance, with pain noted as having a major functional impact. Additionally, a neurological examination revealed no sensory deficits from L1-L5. In December 2011, the Veteran complained of low back and right hip pain. The Veteran also reported that he had occasional paresthesia down his left side from his previous lumbar spine surgery. See Private Medical Records Received December 2018. A November 2014 EMG study was noted as normal with no evidence of peripheral neuropathy or lumbosacral radiculopathy. See VA Medical Records Received February 2018. A February 2015 VA medical record noted a provisional diagnosis for back pain with radicular symptoms. A March 2015 lumbar spine CT scan revealed a pedicle screw at L2 and L3 which appeared to be entering into the disc space and was noted as possibly responsible for radicular symptoms. See VA Medical Records Received February 2018. In February 2016, the Veteran reported that his left thigh felt numb or dead while on an elliptical or during long walks. The Veteran also reported random weakness on his right side which would begin with a shooting pain in his right back and run down to his thigh causing his leg to give out. See Private Medical Records Received December 2018. An April 2016 private orthopedic medical record noted a bone scan positive for arthritis within the inferior SI joints and medical hip joints. The physician also noted a malpositioned pedicle screw at the L2 level which had migrated into the L2-L3 disc space from a previous surgery in Germany. See Private Medical Records Received January 2017. A July 2016 private medical record noted back pain with associated symptoms of numbness and tingling in the left thigh, lower back to thigh paresthesia, and left sided weakness. In August 2016, a private medical record noted preoperative diagnoses for history of lumbar fusion, spondylolisthesis at L5-S1, and lumbosacral radiculitis. See Private Medical Records Received December 2018. The Veteran underwent a surgical procedure to remove malpositioned instrumentation at L2-L3 in November 2016. See Private Medical Records Received March 2017. Another November 2016 private medical record noted an admission diagnosis for lumbosacral radiculitis. See Private Medical Records Received December 2018. In February 2017, the Veteran reported pain with standing 10-15 minutes and bilateral foot numbness with sitting on a plane. In October 2017, a physical therapy record noted mild impairment in lumbar flexion between 40 to 50 degrees, and moderate impairment of extension between 10 to 19 degrees. See Private Medical Records Received December 2018. At a March 2018 VA lumbar spine examination, the Veteran reported a recent back surgery in November 2016 for removal of malpositioned lumbar spine hardware. The Veteran also reported that his lumbar spine was aggravated by prolonged sitting, standing or lifting heavy objects. The Veteran denied any flare-ups. His lumbar spine disability was manifested by forward flexion to 80 degrees and extension to 30 degrees. The abnormal ROM was not found to contribute to functional loss and no pain was elicited during ROM testing. The Veteran was able to perform repetitive use testing with no additional loss of function. Pain, weakness, fatigability or incoordination were not found to significantly limit functional ability with repeated use over a period of time. No guarding or muscle spasm was found. Muscle strength, reflex and sensory testing was normal. The Veteran was not found to have any signs or symptoms due to radiculopathy. No ankylosis was found and the lumbar spine disability was not manifested by IVDS. At a December 2018 Board hearing, the Veteran testified that during a VA examination, while he was performing ROM testing and he told the examiner when his pain began. In addition, the Veteran stated that the examiner told him he could go further, and that the examiner then abruptly ended the examination. The Veteran testified that he could not remember when this examination took place. The Veteran last underwent a VA lumbar spine examination in December 2019. The Veteran reported increased pain with activity, including with sitting and standing for long periods. In addition, the Veteran reported muscle spasms with different positions, and that lifting any object affected his back. The Veteran denied any flare-ups. He did report functional loss caused by prolonged sitting or standing, or lifting heavy objects. ROM testing revealed forward flexion to 80 degrees and extension to 25 degrees. Pain was noted during ROM testing which did not result in or cause functional loss. Repetitive use testing did not result in additional loss of ROM. Pain, weakness, fatigability or incoordination was not found to significantly limit functional ability with repeated use over time. Additionally, while pain and decreased ROM were noted, the examiner concluded that both did not cause functional loss. The Veteran’s lumbar spine disability was not found manifested by guarding or muscle spasm, ankylosis or IVDS. Muscle strength, reflex and sensory testing were normal. No radicular signs were found. The Veteran did not have any other neurological abnormalities such as a bowel or bladder condition that was found related to his lumbar spine disability. As noted above, throughout the period on appeal, the Veteran’s lumbar spine disability has been rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5237. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, the General Rating Formula for Diseases or Injuries of the Spine pertained to diagnostic codes 5235 to 5243. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Under this rating criteria, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine 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. A 40 percent rating is warranted for forward flexion 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Effective February 7, 2021, DC 5242, applies to degenerative arthritis and DDD other than IVDS. DC 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. However, throughout the period on appeal, as noted more fully below, the Veteran’s lumbar spine disability has not been shown to be manifested by IVDS. Accordingly, the rating criteria pertaining to the Veteran’s service-connected lumbar spine disability has not substantially changed as a result of the February 7, 2021 amendments. After a review of the evidence of record, the Board finds that throughout the period on appeal, a rating in excess of 20 percent disabling is not warranted. In this regard, ROM has been shown manifested by forward flexion to, at worst, 40 degrees. See November 2011 VA Examination. Importantly, the 40 degrees of flexion was recorded following repetitive use testing. 38 C.F.R. §§ 4.40 and 4.45. While the Board recognizes that the November 2011 VA examination also shows that pain began at 10 degrees, and that the examiner noted pain had a major functional impact, there is no evidence, nor has the Veteran asserted, that his ROM has been limited to less than 30 degrees at the time of that examination. Instead, the Veteran has asserted that during one of his VA examinations, he reported to the examiner when his pain began, but that the examiner told him he could go farther, and that the examination was abruptly ended. However, the Veteran has not asserted that any particular VA examination was inadequate. In this regard, the Veteran testified that he could not remember which VA examination this had taken place and a review of both the November 2011 and March 2018 VA examinations show that the required diagnostic testing took place. Accordingly, the Board finds both the November 2011 and March 2018 VA examinations adequate to adjudicate the issue on appeal. Additionally, the Board notes that similar ROM findings were also provided in a later October 2017 physical therapy record which noted flexion between 40 and 50 degrees. Thereafter, a March 2018 VA examination noted marked improvement in ROM, and the examiner found that pain, weakness, fatigability and/or incoordination did not significantly limit functional ability with repeated use over a period of time. Accordingly, throughout the period on appeal, the Board finds that the Veteran’s lumbar spine disability has not been shown to be manifested by forward flexion limited to 30 degrees or less. The Board further notes that throughout the period on appeal, the Veteran’s lumbar spine has not been found manifested by ankylosis. The Board has also considered rating the Veteran’s lumbar spine disability pursuant to the Formula for Rating Intervertebral Disc Syndrome. However, throughout the period on appeal, the Veteran’s lumbar spine disability has not been shown to be manifested by IVDS, nor has the Veteran asserted such. The Board has further considered assigning separate ratings based on neurogenic impairments. Initially, the Board notes that throughout the period on appeal, the Veteran has not been shown to have any other impairments, such as bowel or bladder impairment, in connection with his lumbar spine disability. With regard to radiculopathy, the Board recognizes private medical records dating from February to November 2016 showing symptoms possibly related to radiculopathy. The Board also recognizes a prior November 2014 EMG study which revealed no evidence of peripheral neuropathy or lumbosacral radiculopathy. In any event, a December 2016 rating decision denied entitlement to service connection for bilateral lower extremity radiculopathy. The Veteran did not appeal that decision, and it is final. U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Board additionally recognizes that during his December 2018 Board hearing, the Veteran reported sporadic sciatic nerve pain on the right side and a burning sensation in his thigh. The Veteran is competent to report purported symptoms such as pain, a burning sensation, or symptoms which may appear related to radiculopathy. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing that he has medical training or expertise, he cannot competently provide a medical diagnosis, such as radiculopathy. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Instead, the Board finds both the March 2018 and December 2019 VA examination reports the most probative as to whether the Veteran’s lumbar spine disability is manifested by radiculopathy. In this regard, both examination reports which conducted diagnostic testing specifically found the Veteran’s lumbar spine disability not manifested by radicular signs or symptoms. Accordingly, the Board concludes that separate ratings based on associated neurogenic impairments are not warranted. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Lastly, the Veteran is already service-connected for post-surgery lumbar spine scars, and those ratings are addressed below. Accordingly, the Board concludes that throughout the period on appeal, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Right Shoulder Disability The Veteran filed a service connection claim for right shoulder disability in October 2011. That claim was granted in a July 2012 rating decision and assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.71a, DC 5237; effective January 1, 2012 (the day following separation from service). The Veteran has appealed the initial rating. As noted above, a July 2020 rating decision granted an increased initial 20 percent evaluation. During the period on appeal, the Veteran underwent a VA shoulder examination in November 2011. The Veteran reported weakness, stiffness, giving way, lack of endurance, locking, and pain. He denied any swelling, heat, redness, fatigability, deformity, tenderness, drainage, effusion, subluxation or dislocation. He also reported flare-ups 2 to 4 times per day during which he would experience limitation of motion and an inability to lift or throw overhead. The examiner noted tenderness at the anterior shoulder with pain on resisted empty can test. No edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or subluxation was found. ROM testing revealed flexion to 180 degrees, abduction to 165 degrees with pain beginning at 125 degrees, and external and internal rotation to 90 degrees. Repetitive-use testing resulted in the same ROM results. The right shoulder was not found additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive-use. An X-ray study was noted as within normal limits. The examiner diagnosed the Veteran with a right shoulder rotator cuff tendonitis with impingement. Thereafter, an August 2014 VA X-ray study revealed osteoarthritic changes of the right AC joint. See VA Medical Records Received February 2018. In October 2014, the Veteran complained of right shoulder pain the past 10 years. Pain was rated 7 to 8 on a scale to 10. Pain also reportedly woke the Veteran up. An X-ray study was noted to reveal degenerative joint disease (DJD) of the AC joint. Abduction was noted to 100 degrees active motion and 160 degrees passive motion. External rotation was noted to 40 degrees and internal rotation to 10 to 11 degrees. The Veteran was positive for impingement. See VA Medical Records Received February 2018. The Veteran underwent a bone scan in April 2016 which revealed evidence of arthritis within the shoulders. See Private Medical Records Received December 2018. At a December 2018 Board hearing, the Veteran testified that he could not sleep on his right side or he would develop a stabbing pain. In addition, the Veteran reported that if he exceeded a certain ROM, his right shoulder would become painful affecting his ability to conduct daily activities including lifting, carrying and moving things. The Veteran also testified that his right shoulder condition had worsened since his last VA examination, but not significantly. A November 2019 private medical record noted an X-ray study of the right shoulder which was negative for arthritis. Type II acromion was found. The physician noted right shoulder joint pain, a sprain of the right rotator cuff capsule and right shoulder bursitis. See Private Medical Records Received January 2020. At a December 2019 VA shoulder examination, the examiner diagnosed the Veteran with a shoulder strain, degenerative arthritis and rotator cuff tendonitis with impingement. The examiner noted the Veteran was right hand dominant. The Veteran reported increased pain, an inability to sleep on his right side, an inability to throw and lift overhead, and decreased ROM. In addition, the Veteran reported weakness and loss of strength depending on movement. Current symptoms reported included dull pain with movement and sharp pain with ROM. The Veteran denied any flare-ups. He did report functional loss due to increased pain caused by typing, activities of daily living and heavy lifting. Range of motion testing revealed flexion and abduction to 170 degrees, and external and internal rotation to 85 degrees. Pain was noted during ROM testing which was not found to contribute to functional loss. Repetitive use testing did not result in further loss of ROM. Pain, weakness, fatigability or incoordination was not found to significantly limit functional ability with repeated use over a period of time. Muscle strength testing revealed active movement against some resistance in forward flexion and abduction. No muscle atrophy was found. The right shoulder disability was not found manifested by ankylosis. Shoulder instability, dislocation or a labral pathology was not suspected. Additionally, a clavicle, scapula, AC joint or sternoclavicular joint condition was not suspected, and the Veteran did not have any impairment of the humerus. The Veteran last underwent a VA shoulder examination in January 2020. The examiner noted a diagnosis for right shoulder rotator cuff tendonitis with impingement. The Veteran reported experiencing pain, stiffness, and decreased ROM. The Veteran also reported flare-ups that lasted a few days to weeks, during which he reported waking up in pain and an inability to sleep on his right side. In addition, the Veteran reported functional loss due to an inability to reach up high or lift heavy objects. ROM testing revealed flexion and abduction to 175 degrees and external and internal rotation to 85 degrees. Pain was noted during external and internal rotation. The examiner noted that limited ROM contributed to functional loss due to an inability to reach up, grasp items or lift heavy items. The Veteran was able to perform repetitive use testing with no further loss of ROM. Pain, fatigue, weakness and lack of endurance were found to cause functional loss with repetitive use over time and during flare-ups. The examiner estimated that flare-ups and repetitive use over time further reduced flexion and abduction to 170 degrees, and external and internal rotation to 80 degrees. Muscle strength testing was normal. The right shoulder disability was not found manifested by ankylosis. The examiner did suspect a labral pathology due to a history of mechanical symptoms such as clicking, catching, etc. The examiner noted no history of recurrent dislocation of the glenohumeral (scapulohumeral) joint, and a negative crank apprehension and relocation test. No clavicle, scapula, AC joint or sternoclavicular joint condition, or conditions or impairments of the humerus were found or suspected. After a review of the evidence of record, the Board finds that an initial rating in excess of 20 percent disabling pursuant to DC 5201 is not warranted. The Veteran’s right shoulder disability has been rated pursuant to 38 C.F.R. § 4.71a, DC 5201 (limitation of motion). The Board notes that the Veteran is right-handed. See January 2020 VA examination. Therefore, his right arm is considered his dominant or major arm, and the criteria for rating dominant upper extremities will be applied. 38 C.F.R. § 4.69. The normal range of motion of the shoulder is 0 to 180 degrees of flexion (forward elevation), 0 degrees to 180 degrees of abduction, 0 degrees to 90 degrees of external rotation, and 0 degrees to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. Limitation of motion of the arm at the shoulder is rated under DC 5201. As noted above, during the pendency of the appeal, the Board notes that the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. However, as it pertains to rating the Veteran’s shoulder disability, the Board notes that the revised ratings did not substantially change the rating criteria. Instead, as it pertains to DC 5201, limitation of motion of arm, the revisions more properly defined the rating criteria. Specifically, under the criteria in effect prior to February 7, 2021, under DC 5201, a 20 percent rating is assigned for range of motion of the major arm limited at shoulder level. Effective February 7, 2021, the regulations define such limitation as flexion and/or abduction as limitation to 90 degrees. Under the criteria in effect prior to February 7, 2021, a 30 percent rating is assigned for range of motion of the major arm limited to midway between the side and shoulder level. Effective February 7, 2021, the regulations define such as flexion and/or abduction limited to 45 degrees. Under the criteria in effect prior to February 7, 2021, the highest rating under this diagnostic code is 40 percent for range of motion of the arm of the major extremity limited to 25 degrees from the side. Effective February 7, 2021, the regulations define such flexion and/or abduction limited to 25 degrees from side. 38 C.F.R. § 4.71a. The Board also notes other diagnostic codes relating to the shoulder including DC 5200 (ankylosis of scapulohumeral articulation), DC 5202 (humerus), and DC 5203 (a malunion of the clavicle or scapula or a nonunion of the clavicle or scapula without loose movement). However, those disabilities have not been shown on examination or by the evidence of record. Therefore, the Board finds that application of those diagnostic codes is not warranted. Turning to DC 5201, throughout the period on appeal, the Veteran’s right shoulder disability has been manifested by ROM limited to, at worst, 100 degrees abduction. See October 2014 VA medical record. Therefore, throughout the period on appeal, it cannot be said that the Veteran’s limitation of motion has been restricted to midway between the side and shoulder level (i.e. 90 degrees). Lastly, the Board finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. at 204-7. In this regard, the assigned 20 percent rating has been based upon painful motion. As demonstrated by the competent medical evidence of record, the 20 percent rating assigned during this period adequately compensates the Veteran for the extent of functional loss resulting from pain as it has not been demonstrated that the right shoulder has been limited to range of motion below shoulder level even when factoring in painful motion. Therefore, it follows that even when considering functional loss due to factors such as pain, the Veteran’s right shoulder disability was not manifested by symptomatology approximating a 30 percent disability rating. Therefore, based on the totality of the record, the Board finds that a higher 30 percent rating is not warranted. As the preponderance of the evidence is against the assignment of any higher rating, the claim for increase must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Residual Post-Spinal Fusion Scars The Veteran filed a service connection claim for residual scars on his stomach, left side and back in October 2011. That claim was granted in a July 2012 rating decision which assigned a non-compensable rating effective January 1, 2012; the day following separation from service. The Veteran has appealed his initial rating. The Veteran’s service-connected scar residuals have been rated pursuant to 38 C.F.R. § 4.118. As noted above, a July 2020 rating decision granted an increased 10 percent rating effective December 24, 2019. The Veteran underwent a VA examination in November 2011. During that examination, the Veteran reported painful abdominal scars. He also reported that he could not withstand pressure on his abdomen. He denied any skin breakdown. The examiner noted 4 spinal fusion related scars (two on the anterior trunk and two on the posterior trunk) including the following: a posterior linear scar measuring 11 cm by 0.5 cm; another posterior scar measuring 7 cm by 0.5 cm; an anterior scar measuring 7 cm by 0.8 cm; and, another anterior scar measuring 5 cm by 0.2 cm. The scars were not found to be painful or manifested by skin breakdown. The examiner further noted the scars to be superficial with no underlying tissue damage. As noted above, the Veteran underwent a surgical procedure in November 2016 to remove malpositioned instrumentation at L2-L3. Following his surgical procedure, a December 19, 2016 physical therapy record shows the anterior surgical site associated with the lumbar spine hardware removal procedure was painful with gentle touch. A January 2017 physical therapy record also noted scar tissue from the anterior abdominal to posterior spine that was tender to touch. See Private Medical Records Received December 2018. During a December 2018 Board hearing, the Veteran testified that his posterior trunk and stomach scars were painful if pressed upon such as when wearing a belt. The Veteran last underwent a VA scar examination in December 2019. The examiner noted three status post lumbar fusion scars; the first diagnosed as an anterior lower abdomen scar; the second diagnosed as an anterior left lateral scar; and the third diagnosed as a linear posterior scar. The examiner noted that only the second scar was painful as the Veteran reported dull pain with tight clothing or any type of applied pressure. None of the scars were found unstable or with frequent loss of covering of skin. Additionally, none of the scars were found to have underlying tissue damage. The first anterior trunk scar measured 3 cm x 1 cm. The second anterior trunk scar measured 5 cm x 1 cm. The posterior trunk scar measured 9 cm x 0.1 cm. The scars located at the anterior trunk were found to cover an approximate total area of 8 cm2, and the scar located at the posterior trunk was found to cover an approximate total area of 0.9 cm2. The Veteran’s residual post-spinal fusion scars have been rated noncompensable prior to December 24, 2019, and 10 percent rating thereafter. Skin conditions are rated pursuant to 38 C.F.R. § 4.118. The Board notes that the applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended most recently in August 2018. However, the 2018 revisions did not substantively change the Codes applicable to the Veteran’s scars. Under 38 C.F.R. § 4.118, scars are rated under DC 7800 (scars of the head, face, or neck or other disfigurement of the head, face or neck), 7801 (scars not of the head, face of neck, that are deep and nonlinear), 7802 (scars not of the head, face or neck that are superficial and nonlinear), and 7804 (scars that are unstable or painful). Pursuant to DC 7801, scars not of the head, face or neck that are deep and nonlinear (that are associated with underlying soft tissue damage per 2018 revisions) and are at least 6 square inches (39 sq. cm.) warrant a 10 percent rating. DC 7802 provides that scars other than head, face, or neck that are superficial and nonlinear (that are not associated with underlying soft tissue damage per 2018 revisions) will be rated as 10 percent disabling for areas of 144 square inches or greater. Initially, the Board notes that the Veteran’s service-connected status post lumbar fusion scars are located on the trunk. Therefore, DC 7800 is not for application. Additionally, the Veteran’s residual scars have been noted to be superficial with no underlying tissue damage and they have not been found to be nonlinear or cover an area more than 8 cm in length. Therefore, even if one were to rate the residual scar under DCs 7801 and 7802, those codes do not provide the Veteran with a compensable rating and, therefore, do not provide a more beneficial outcome. Lastly, the Board notes that ratings for skin conditions unrelated to the Veteran’s residual scar can be found under DCs 7806 to 7833. As such, the Board will not consider those ratings. Pursuant to DC 7804, a rating of 10 percent is warranted for one or two scars that are unstable or painful, and a 20 percent evaluation is warranted for three or four scars that are unstable or painful. A 30 percent evaluation is warranted for five or six scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7800, Note (2). After a review of the evidence of record, the Board finds that, prior to December 24, 2019, the Veteran’s two anterior service-connected scars have been shown to be manifested by pain. In this regard, the Veteran reported painful abdominal scars during his November 2011 VA examination. Additionally, physical therapy records also noted painful abdominal scars. The Board notes the Veteran is competent to report purported symptoms such as pain. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that an initial 10 percent rating, but no higher, is warranted. Additionally, the evidence of record also shows that only the Veteran’s abdominal scars have been found painful. While the January 2017 physical therapy record noted tender scar tissue from the anterior abdomen to the posterior spine, the Board finds this notation to be an anomaly. In this regard, both the November 2011 and December 2019 VA examiners determined that only abdominal scars were painful. Additionally, a prior December 2016 physical therapy record only noted painful anterior surgical site scars. Accordingly, as the Veteran only has two residual abdominal scars, a higher 20 percent evaluation is not warranted as the Veteran’s scar residuals have not been shown to be manifested by three or four painful scars. In sum, the Board finds that an increased initial 10 percent disability rating, but no higher, for painful spinal fusion scar residuals is warranted. Throughout the period on appeal, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Bilateral Hip Disability As noted above, this case was remanded in May 2019 to obtain a VA examination. The requested examination was obtained in December 2019. The examiner noted a diagnosis for bilateral degenerative arthritis. The Veteran reported that his bilateral hip condition began in approximately 2004/2005. In addition, the Veteran reported that his hip pain began as a result of marching with ruck sacks. He further reported that his bilateral hip condition was affected by his service-connected lumbar spine disability, and that his hip symptoms worsened after his lumbar fusion surgeries, including worsening pain. With regard to direct service connection, the examiner opined that it was “less likely than not (less than 50 percent probability)” that the Veteran’s bilateral hip condition was etiologically related to service. In support of this opinion, the examiner noted that the Veteran’s separation examination did not show any complaints or findings for a chronic bilateral hip condition. In addition, the examiner noted that a 2011 X-ray study was normal. Additionally, the examiner noted that the first record showing bilateral hip arthritis was a bone scan conducted 7 years after separation from service. Therefore, the examiner found no chronicity of care and determined that a nexus had not been established. The Board finds the examiner’s rationale inadequate. In this regard, while the examiner noted that a bilateral hip condition was not noted during the Veteran’s separation examination, the STRs do note treatment for symptoms of a hip condition. This includes a March 2006 radiological study noting the Veteran complained of low back pain with right hip flexor weakness. In May 2006, the Veteran reported severe back and hip pain. The Veteran also reported that he continued to have weakness in his right leg after walking over 15-minutes. In September 2006, a STR shows the Veteran underwent a radiological hip study to rule out pain generator for chronic lower back pain. The Veteran was diagnosed with herniated disc at L2-L3, lumbago and spondylolisthesis at L5-S1 with pars defect. A November 2007 STR shows the Veteran complained of decreased sensation and numbness in his right anterior thigh. Additionally, while the September 2011 retirement examination does not note any hip condition, the Veteran did report several musculoskeletal conditions including back, shoulder, foot and knee pain. The Board finds this significant as the Veteran’s bilateral hip symptoms have been shown to overlap other lower extremity disabilities. However, the examiner did not consider any evidence of bilateral hip complaints during service. The examiner also incorrectly noted a seven year gap in treatment for a bilateral hip condition after separation from service. In this regard, the Veteran clearly reported a hip condition when he filed his service connection claim in October 2011. While he was not diagnosed with a hip condition during an October 2011 VA examination, he did report tenderness and pain. Thereafter, the Veteran complained of right hip pain in December 2011, and a private physician assessed him with right hip pain probably secondary to sacroiliac joint arthritis. Additionally, a March 2012 private medical record noted numbness and hypesthesia involving the left hip and thigh. See Private Medical Records Received December 2018. The bone study which revealed evidence of arthritis within the inferior sacroiliac joints and medial hip cited by the examiner occurred in April 2016. Therefore, the bone study occurred within 5 years following separation from service, not 7. Complaints of bilateral hip pain remained constant since that time. With regard to whether the bilateral hip condition is secondary to the service-connected lumbar spine disability, the examiner opined that it was not “at least as likely as not” that the bilateral hip condition was aggravated by the service-connected lumbar spine disability. In support of this opinion, the examiner noted no evidence upon examination, or in any of the available records, that supported a finding that the bilateral hips were aggravated by the lumbar spine disability. The Board again finds the examiner’s rationale lacking. In this regard, while the examiner noted no evidence supporting a finding that the bilateral hip condition was aggravated by the lumbar spine disability, the examiner failed to address evidence showing interrelated symptoms. As noted above, the Veteran complained of severe back and hip pain in May 2006, and he underwent a radiological hip study during service in September 2006. The purpose of this study was to rule out pain generator for chronic lower back pain. He was diagnosed with a herniated disc at L2-L3, lumbago and spondylolisthesis at L5-S1 with pars defect. He was also referred to physical therapy for treatment of left hip and low back pain in May 2011. See Private Medical Records Received January 2017. A December 2011 private medical record assessed the Veteran with right hip pain probably secondary to SI joint arthritis. In March 2012, he was noted to have left hip and thigh numbness and hypesthesia from spinal fusion surgery. See Private Medical Records Received December 2018. The examiner did not address any of this evidence. Therefore, the examiner’s rationale that there was no evidence that supported a finding that the bilateral hips were aggravated by the lumbar spine disability does not appeal based on an accurate factual predicate. For these reasons, a remand is necessary to obtain another VA examination. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral hip condition. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral hip condition that is etiologically related to his period of service? The examiner is asked to consider the Veteran’s lay statements as to wear and tear during service. The examiner is additionally asked to consider STRs noting hip symptoms including a March 2006 radiological study noting complaints of right hip flexor weakness, complaints of severe hip pain and right leg weakness in May 2006, a September 2006 radiological hip study, and complaints of decreased sensation and numbness in the right anterior thigh in November 2007. In addition, the examiner is asked to consider complaints of bilateral hip pain, numbness and hypesthesia shortly after separation from service. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral hip condition that was caused by a service-connected disability, to include lumbar spine disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral hip condition that was aggravated by a service-connected disability, to include lumbar spine disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider the Veteran’s lay statements. The examiner is also asked to consider medical records noting complaints of back and hip pain, including in May 2006, September 2006, a May 2011 physical therapy record noting treatment for left hip and low back pain, a December 2011 private medical record noting right hip pain probably secondary to SI joint arthritis, and a March 2012 private medical record noting left hip and thigh numbness and hypesthesia from spinal fusion surgery. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.