Citation Nr: 21026472 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-26 723 DATE: May 3, 2021 ORDER Entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for sensorineural hearing loss is denied. Entitlement to an initial rating in excess of 40 percent for herniated L4-5 and L5-S1 with extrusion lumbar spine is denied. Entitlement to an initial compensable rating for surgical scar status post lumbar decompression L4-S1 is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had pseudofolliculitis barbae at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had sensorineural hearing loss at any time during or approximate to the pendency of the claim. 4. The Veteran's lumbar spine disability is manifested by flexion limited to 10 degrees, and does not result in incapacitating episodes or associated neurologic abnormalities other than the service-connected left lower extremity disability. 5. The Veteran's lumbar scar is not manifested by any disabling effects not considered under Diagnostic Codes 7800-04. 6. The Veteran's left lower extremity disability is manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for pseudofolliculitis barbae are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sensorineural hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for a rating in excess of 40 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5238. 5. The criteria for a compensable disability rating for the lumbar scar disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 6. The criteria for a disability rating in excess of 20 percent for the left lower extremity disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1999 to August 2003. He testified before the undersigned Veterans Law Judge during a January 2020 hearing. This matter is on appeal from a July 2015 rating decision, and was previously remanded by the Board of Veterans' Appeals (Board) in March 2020. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for pseudofolliculitis barbae The Veteran contends that he has pseudofolliculitis barbae that began in service. January 2020 Hearing Transcript at 2. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of pseudofolliculitis barbae, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2020 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of pseudofolliculitis barbae. The examiner reported that there were no findings, signs, and/or symptoms to support a diagnosis. The Veteran reported having a shaving profile in service, and that he currently did not shave. He also reported having no issues. Further, despite consistent treatment from February 2004 to January 2020, VA treatment records do not contain a diagnosis of pseudofolliculitis barbae or any treatment for associated symptoms. While the Veteran believes he has a current diagnosis of pseudofolliculitis barbae, and is competent to observe lay symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, there is insufficient lay or medical evidence to suggest that any facial hair problems reach the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the Board gives more probative weight to the competent medical evidence failing to show a diagnosis in this case. 2. Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea that began in service. January 2020 Hearing Transcript at 3. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, and evidence shows that he reported having snoring and sleeping disturbances during service, the preponderance of the evidence weighs against finding that the Veteran's sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with sleep apnea until January 2015, years after his separation from service. The Veteran is competent to report having experienced symptoms of snoring and sleep disturbances since service. However, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4. Further, the October 2020 VA examiner opined that the Veteran's sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including his reported snoring and sleep disturbances during service. The rationale was that there was no medical encounter for sleep apnea during active duty. They reported that the only one medical encounter for a positive sleep study was noted in 2015, which was 13 years after he left service. The examiner reported that there were no medical encounters noted in between those years. The examiner acknowledged a buddy statement indicating that the Veteran snored and stopped breathing while sleeping during service. They opined that that statement was not sufficient to support the diagnosis, as snoring by itself or disturbances by itself were not confirmatory for obstructive sleep apnea. The examiner reported that many people snore and have different rhythms during sleep, which was not specific enough for obstructive sleep apnea. The examiner concluded that a sleep study was required to make a formal diagnosis. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his sleep apnea is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion in denying this claim. 3. Entitlement to service connection for sensorineural hearing loss The Veteran contends that he has sensorineural hearing loss that began in service. January 2020 Hearing Transcript at 3. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a sensorineural hearing loss disability as defined by VA, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The October 2020 VA examiner evaluated the Veteran, and audiometric testing did not reveal a sensorineural hearing loss disability as defined by 38 C.F.R. § 3.385. Further, despite consistent treatment from February 2004 to January 2020, there is no indication that the Veteran has a sensorineural hearing loss disability as defined by VA. While the Veteran believes he has a current diagnosis of a sensorineural hearing loss disability, and is competent to observe lay symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis in accordance with 38 C.F.R. § 3.385, as opposed to observations of hearing loss. Jandreau, 492 F.3d at 1377 n.4. Moreover, there is insufficient lay or medical evidence to suggest that any sensorineural hearing loss reaches the level of functional impairment of earning capacity. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer, 3 Vet. App. at 225. Consequently, the Board gives more probative weight to the competent medical evidence failing to show a sensorineural hearing loss disability as defined by VA in this case. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In making the determinations below, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, the Veteran is already in receipt of a total rating based on individual employability due to service-connected disabilities (TDIU). 4. Entitlement to an initial rating in excess of 40 percent for herniated L4-5 and L5-S1 with extrusion lumbar spine The Veteran contends that is entitled to a higher rating because of the severity of his symptoms. January 2020 Hearing Transcript at 5. The Veteran's disability is rated under hyphenated Diagnostic Code 5242-5238. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. §4.2. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. §4.71a). The changes under 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under Diagnostic Code 5243 and all other intervertebral disc disabilities under 5242. As such, Diagnostic Code 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010);" Diagnostic Code 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021, regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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 evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Appeals (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had flare-ups resulting in marked functional limitations, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. A July 2015 VA examination reflects flexion to 10 degrees with pain on motion. The Veteran reported severe pain and spasms that limited functional ability during flare-ups. He reported that his back disability markedly limited his sitting, standing, walking, lying down, driving, bending, and lifting. No flare-ups were reported at an October 2020 VA examination. Range of motion could not be tested due to pain. No ankylosis was shown at either examination. Even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The 2015 and 2020 examinations and treatment records do not show bed rest prescribed by a physician. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the left lower extremity, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to an initial compensable rating for surgical scar status post lumbar decompression L4-S1 The Veteran contends that is entitled to a higher rating for his scar. The Veteran's scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's lumbar scar disability under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The July 2015 VA examination shows that the scar was eight centimeters in length and 0.2 centimeters in width. No disabling effects were reported. The scar was not painful or unstable. An October 2020 VA examination shows that the scar was not painful or unstable, and had no underlying tissue damage. The scar did not result in limitation of function. It measured five centimeters in length and 0.1 centimeters in width. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scar is not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that his lumbar scar disability is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, and his reports are credible. Jandreau, 492 F.3d at 1377. However, he does not assert, and medical records do not show, that his lumbar scar is manifested by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for his lumbar scar disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity The Veteran contends that he is entitled to a higher rating. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Regarding impairment of motor functions, strength was normal of 5/5 at the July 2015 and October 2020 VA examinations. Regarding trophic changes, none was shown at any of the examinations. Regarding sensory disturbance, the July 2015 VA examination shows decreased light touch in the thigh/knee, lower leg/ankle, and foot/toes. The Veteran had moderate paresthesias and/or dysesthesias, and moderate numbness. The October 2020 VA back and peripheral nerves examinations showed a normal sensory exam. The Veteran had mild paresthesias and/or dysesthesias, and mild numbness. Regarding loss of reflexes, the July 2015 and October 2020 VA examinations all showed normal reflexes of 2+. Regarding pain, the July 2015 VA examination shows that the Veteran had moderate constant pain, and no intermittent pain. The October 2020 VA back and peripheral nerves examinations both showed mild intermittent pain, and no constant pain. Regarding muscle atrophy, none was shown at any of the examinations. Regarding complete paralysis, none of the examinations showed that the Veteran's left foot dangles and drops, no active movement possible of muscles below the knee, or flexion of knee weakened or (very rarely) lost. Based on the above, the Board finds that the disability is primarily manifested by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his left leg disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.