Citation Nr: 21030079
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 18-46 313A
DATE: May 17, 2021

ORDER

Entitlement to a rating in excess of 30 percent for residuals of cold injury of the right lower extremity is denied.

Prior to March 23, 2021, entitlement to a rating in excess of 20 precent for residuals of cold injury of the left lower extremity is denied. 

From March 23, 2021, entitlement to a rating of 30 precent, but no higher, for residuals of cold injury of the left lower extremity is granted. 

Prior to March 23, 2021, entitlement to a rating in excess of 20 percent for low back strain, degenerative joint disease (DDD) with neurological deficit, is denied.

From March 23, 2021, entitlement to a rating of 40 percent, but no higher, for low back strain, DDD with neurological deficit, is granted.

FINDINGS OF FACT

1. The Veteran's residuals of cold injury to his right lower extremity are manifested by pain, numbness, cold sensitivity, arthralgia, arthritis as well as nail abnormality and locally impaired sensation.

2. Before March 23, 2021, the Veteran's residuals of cold injury to his left lower leg are manifested by pain, numbness, cold sensitivity, arthralgia, and arthritis.

3. From March 23, 2021, the Veteran's residuals of cold injury to his left lower extremity is manifested by pain, numbness, cold sensitivity, numbness, ar arthritis and locally impaired sensation.

4. Prior to March 23, 2021, the Veteran's low back strain, DDD with neurological deficit is manifested by, at worst, forward flexion of greater than 30 degrees but not greater than 60; combined range of motion (ROM) not greater than 120 degrees.

5. From March 23, 2021, the Veterans low back strain, DDD with neurological deficit is manifested by, at worst, painful motion, a combined ROM not greater than 120 degrees and forward flexion of 30 degrees or less.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for residuals of cold injury of the right lower extremity have not been met. 38 U.S.C. § 1155; C.F.R. § 4.104, DC 7122; Thun v. Peake, 22 Vet. App. 111, 115 (2008).

2. Prior to March 23, 2021, the criteria for a rating in excess of 20 percent for residuals of cold injury of the left lower extremity have not been met. 38 U.S.C. § 1155; C.F.R. § 4.104, DC 7122.

3. From March 23, 2021, the criteria for a rating of 30 percent, but no higher, for residuals of cold injury of the left lower extremity have been met. 38 U.S.C. § 1155; C.F.R. § 4.104, DC 7122; Thun v. Peake, 22 Vet. App. 111, 115 (2008).

4. Prior to March 23, 2021, the criteria for a rating in excess of 20 percent for low back strain, DDD with neurological deficit, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, DCs 5243, 5003.

5. From March 23, 2021, the criteria for a rating of 40 percent, but no higher, for low back strain, DDD with neurological deficit, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, DCs 5242, 5003.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 1952 to January 1954. 

This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office. 

By way of history, in May 2017, the Veteran filed a claim for increased ratings for his bilateral lower extremity cold residuals and DDD. A June 2017 rating decision denied an increase in his ratings. In October 2018, the Veteran filed a VA Form 9 Notice of Disagreement, as well as correspondence indicating that he wished to file a RAMP Opt-In and indicated a preference for the Direct Review Docket. Both documents were loaded into VBMS. The appeal was later closed for a failure to respond. See October 2018 VA Form 9; see also October 2018 Correspondence using Ramp Opt-In language. 

On March 4, 2021, the Veteran also filed an increased rating claim for cold residuals to his right and left lower extremity as well as his back DDD. See VA Form 21-536EZ. In March 2021, the Veteran called to inquire as to the status of increased ratings appeal and was informed that the appeal was closed on November 14, 2018 for failure to respond. See March 2021 IRIS Inquiry. In March 2021, the VA determined that the Veteran had responded and reactivated the Veteran's Form 9 appeal filed in October 2018 which indicated the Veteran's wish to Ramp Opt in. See March 4, 2021 Correspondence. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in. See 38 C.F.R. § 20.301. The Board reactivated that Veteran's Ramp Opt-in appeal on March 4, 2021. Therefore, the Board will consider evidence of record on March 4, 2021. Id.

In March 2021, the Veteran was afforded new VA examinations regarding his cold injury residuals and his back DDD. In an April 2021 rating decision, the RO denied an increased rating for the Veteran's right lower extremity cold residuals but increased the ratings for left lower extremity cold residuals and back strain DDD. As both increases are not a full grant of benefits, both issues remain on appeal.

Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. Ab v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

1. Increased rating for right lower extremity cold injury

The Veteran contends that residuals of cold injury of his right lower extremity warrants a rating in excess of 30 percent. In a December 2011 rating decision, the Veteran's right lower extremity cold residuals was service connected with a rating of 30 percent from October 16, 2010.

Cold injury residuals are rated under 38 C.F.R. § 4.104, DC 7122. Under DC 7122, a 20 percent is assigned for cold injury manifested by arthralgia or other pain, numbness, or cold sensitivity plus: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, sub-articular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, DC 7122.

A maximum 30 percent rating is assigned for cold injury manifested by arthralgia or other pain, numbness, or cold sensitivity plus 2 or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punch out lesions, or osteoarthritis). Id.

Note (1) to Diagnostic Code 7122 provides that amputations of fingers or toes and complications at the site of a cold injury scar or peripheral neuropathy should be evaluated separately. It also provides that other disabilities diagnosed as residuals of cold injuries, such as Raynaud's phenomenon, muscle atrophy, etc., should be evaluated separately unless they are used to support an evaluation under DC 7122. See id. at Note (1). Each affected part should be evaluated separately, and the ratings then combined in accordance with §§ 4.25 and 4.26. See id. at Note (2).

Analysis

In May 2017, the Veteran filed an increased rating claim. In May 2017, the Veteran was afforded a new VA examination for residuals of his cold weather injury. The examiner noted that the Veteran complained of pain, numbness, cold sensitivity, a diagnosis of root foot osteoarthritis in November 2016, a great toenail fungal infection. See May 2017 VA Examination, pg. 2-3. The examiner noted that the Veteran was wearing bilateral braces and used a cane. See id. 

The Board finds that these symptoms and findings are consistent with a 30 percent rating. The Veteran is currently assigned a 30 percent evaluation for cold injury residuals of his right foot. A 30 percent evaluation represents the maximum schedular rating available under this diagnostic code. Therefore, an evaluation in excess of 30 percent cannot be granted under DC 7122.

In March 2021, the Veteran was afforded a new VA examination. The examiner noted that the Veteran continued to have right foot pain, numbness, cold sensitivity, osteoarthritis and great toenail fungal infection. The Veteran also reported that he had "drop foot, . . . tingling and burning pain," and stated that when he walks, "I feel like the bottom of my feet are stepping on rocks." See March 2021 VA Cold Injury Residuals, Disability Benefits Questionnaire (DBQ), pg. 2.

The Veteran submitted a letter from a private physician stating that the Veteran has drop foot, lower extremity muscle weakness and difficulty walking associated with a balance disorder. See Dr. J.M., Podiatrist, Letter dated January 11, 2018.

The Board finds that these symptoms and findings are consistent with a 30 percent rating. The Veteran is currently assigned a 30 percent evaluation for cold injury residuals of his right foot. A 30 percent evaluation represents the maximum schedular rating available under this diagnostic code. Therefore, an evaluation in excess of 30 percent cannot be granted under DC 7122.

The Board has also reviewed other applicable diagnostic codes. Under Diagnostic Code 5284, for foot injuries, a maximum schedular rating of 30 percent is available for severe foot injuries. As the Veteran has already been awarded a 30 percent evaluation for his foot disorders, an increased evaluation under Diagnostic Code 5284 does not assist the Veteran.

The Veteran reported left lower extremity burning sensation, or dysthesia, as well as a numbness tingling, pins and needles sensation, paresthesias. See Neurological Disorders, MERCK MANUAL, merckmanual.com, found at https://www.merckmanuals.com/professional/neurologic-disorders/symptoms-of-neurologic-disorders/numbness (defining paresthesia as tingling (pins-and-needles) sensation); see also Neuropathic Pain, MERCK MANUAL, merckmanual.com, found at https://www.merckmanuals.com/professional/neurologic-disorders/pain/neuropathic-pain (defining dysthesia as a burning sensation). 

Pursuant to 38 C.F.R. § 4.104, DC 7122, peripheral neuropathy or other disabilities diagnosed as residuals of cold injuries, are to be evaluated separately unless they are used to support an evaluation under DC 7122. In this case, the Veteran's neurological symptoms have been evaluated separately under DC 8520.  An April 2021 rating decision granted the Veteran service connection for radiculopathy of both lower extremities with a rating of 20 percent from March 23, 2021. This newly service-connected radiculopathy reasonably encompasses the Veteran's neurological symptoms. See DC 8520.

The Board acknowledges the Veteran's symptoms and difficulties that have accompanied these symptoms. Nevertheless, the rating codes do not permit an evaluation in excess of 30 percent for this disability. This is the highest schedular evaluation under the law for cold injury residuals.

Extraschedular Rating

The Board had also considered whether an extraschedular rating is warranted for the service-connected cold residuals of a frostbite injury to the right foot. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional provision that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95.

Here, the Veteran's symptoms do not reflect exceptional or unusual manifestations of his residuals of cold injury to the right foot. As discussed above, and in the reports a more recent March 2021 VA cold injury condition examination the Veteran complained of right lower extremity pain, cold sensitivity, numbness, burning, a pins and needles feeling. The Veteran, however, has been separately granted service connection for radiculopathy of the right lower extremity, so in determining whether referral for extraschedular evaluation of the Veteran's cold residuals is warranted, the Board finds that it need not consider the radiculopathy symptoms pursuant to the rule against pyramiding. The Veteran's other symptoms can all be characterized as arthralgia or other pain, numbness, or cold sensitivity, nail abnormalities, locally impaired sensation, and/or X-ray abnormalities (osteoporosis or osteoarthritis), all of which are explicitly contemplated by and compensated under the Veteran's current 30 percent disability rating. See 38 C.F.R. § 4.104, Code 7122. As such, the rating criteria are adequate to evaluate the Veteran's disabilities, and referral for consideration of an extraschedular rating is not warranted.

As the Veteran has been granted the maximum schedular rating for this disability, and referral for consideration of an extraschedular rating is not warranted, the claim is denied.

2. Left lower extremity cold residuals before March 23, 2021

The Veteran contends that cold residuals in his left lower extremity warrant a rating in excess of 20 percent. In a December 2011 rating decision, the Veteran's left lower extremity cold residuals were service connected and evaluated at 20 percent disabling. 

In May 2017, the Veteran filed an increased rating claim. In May 2017, the Veteran was afforded a new VA examination for residuals of his cold weather injury. The examiner noted that the Veteran complained of pain, numbness, cold sensitivity, and had a diagnosis of left root foot osteoarthritis. See May 2017 VA Examination, pg. 2-3. The examiner noted that the Veteran was wearing bilateral braces and used a cane. See id. at pg. 5. The examiner did not note any other pertinent findings; the cold residuals did not impact his ability to work. See id. The Board finds that these symptoms and findings are consistent with a 20 percent rating. Thus, an evaluation in excess of 20 percent is not warranted.

3. Cold weather injury residuals left lower extremity from March 23, 2021

In March 2021, the Veteran was afforded a new VA examination. The examiner noted that the Veteran reported left lower extremity pain, numbness, cold sensitivity, and also had locally impaired sensation and nail abnormalities. See March 2021 VA Cold Residuals DBQ, pg. 4. The Veteran also had osteoarthritis of the left foot. The Board finds that these symptoms are consistent with a 30 percent evaluation. 

Regarding dysthesia and paresthesias of the lower extremities, the issue of entitlement to separate evaluations for radiculopathy of the bilateral lower extremities has been raised by the record. Moreover, the Veteran submitted a letter from a private physician stating that the Veteran he has foot drop foot, lower extremity muscle weakness and difficulty walking associated with a balance disorder. See Dr. J.M. Letter. The Board has reviewed additional relevant diagnostic codes and finds radiculopathy symptoms are addressed under DC 8520.

Regarding an evaluation in excess of 30 percent for left lower extremity cold residuals, the Board acknowledges the Veteran's symptoms and difficulties that have accompanied these symptoms but the rating codes do not permit an evaluation in excess of 30 percent for this disability. As noted, radiculopathy symptoms are addressed under recently left lower extremity service-connected radiculopathy under DC 8520. The Veteran's other symptoms can all be characterized as arthralgia or other pain, numbness, or cold sensitivity, locally impaired sensation, and/or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis), all of which are explicitly contemplated by and compensated under the Veteran's current 30 percent disability rating. See 38 C.F.R. § 4.104, Code 7122. As such, the rating criteria are adequate to evaluate the Veteran's disabilities, and referral for consideration of an extraschedular rating is not warranted. Therefore, the claim for an increased rating of 30 percent, and no more, for left lower extremity cold residuals from March 23, 2021 is granted.

4. Increased rating for a low back strain DDD with neurological deficit prior to March 23, 2021

The Veteran contends that his service-connected low back disability DDD with neurological deficit (back disability) warrants a rating in excess of 20 percent. See May 2017 VA Form 21-526EZ Fully Developed Claim. 

The Veteran's disability is currently rated under Diagnostic Code [XXXX].

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. 

 

The Veteran's back disability is rated under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, DC 5242. 

The General Rating Formula for Diseases and Injuries of the Spine (Formula), a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion (ROM) 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROM for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. See id. at Formula Note (2).

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. See id. at Note (1).

In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM. Provided that the examiner supplies an explanation, the examiner's assessment that the ROM is normal for that individual will be accepted. See id. at Note (3).

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 (0 degrees) always represents favorable ankylosis. The rater is to round each ROM measurement to the nearest five degrees. See id. at Note (5).

Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

It should be noted that during the course of this appeal, the schedular criteria for evaluating the spinal disabilities have been amended.  Specifically, the criteria pertaining to DDD and IVDS, under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). DC 5242 was amended to pertain to DDD other than IVDS, referring also to 5003 and 5010. DC 5243, IVDS, was amended to note that this code shall only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. DC 5242 is to be assigned in all other disc diagnoses.

Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003).

However, if the revised version of the regulation is more favorable, implementation of that regulation under 38 U.S.C.A. § 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's hand disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id.

Analysis

By way of history, a September 1999 rating decision increased his initial non-compensable rating to a 20 percent rating for his back disability due to findings of forward flexion limited to 50 degrees, total thoracolumbar ROM of 105 degrees, mild scoliosis noted on X-ray and a diagnosis of DDD of the lumbar spine at Lumbar vertebrae numbers 1-2, 3-4 (L1-2) (L3-4) and 5 to sacral vertebrae number 1 (L5-S1). See September 1999 Rating Decision. In May 2017, the Veteran filed an increased rating claim for his back disability.

Upon review of the record, the Board finds that the evidence does not warrant a rating in excess of 20 percent prior to March 23, 2021. The Veteran was afforded a VA Back examination in May 2017, which assessed the Veteran's thoracolumbar ROM with and without weight bearing, in passive and active ROM, with repeated use over time and whether pain affected his ROM. The Veteran's forward flexion was found to be 0 to 65 degrees, with a combined ROM of the thoracolumbar spine was 145 degrees. See May 2017 VA Back DBQ, pg. 2. The Veteran was noted to have a diagnosis of DDD of the spine with no neurological deficits. See id. at pg.1.  The Veteran did not have ankylosis of the entire thoracolumbar spine, nor did he have a functional impairment due to pain or reduced ROM. Therefore, the Board finds that an increased rating in excess of 20 percent prior to March 23, 2001 is not warranted under either DC 5242 or 5243. 

5. Low back strain DDD with neurological deficit from March 23, 2021

The Veteran was afforded new VA back examination in March 2021. The examination showed evidence of forward flexion of the thoracolumbar spine of 30 degrees or less, a combined ROM of the thoracolumbar spine of not greater than 120 degrees as well as painful ROM. See March 2021 VA Examination, Section III  ROM and Functional Limitation, pg.10. 

The Board finds that this supports a rating of 40 percent, but no higher, because unfavorable ankylosis of the entire thoracolumbar spine required for a higher rating of 40 percent, was not present. See id. The examiner reviewed pain with movement, changing and worsening of degrees of ROM with three repetitions, and noted that the current functionality did not offer additional losses of function or ROM when it comes to repetitive use over time. The Veteran denied flare ups during the examination. See id. at pg. 13.

The March 2021 examination did not note a functional equivalent of ankylosisi.e., a functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995).

Therefore, for these reasons, the Board finds that a rating of 40 percent for the Veteran's back disability, and not more, from March 23, 2021, is warranted.

Other considerations

In making its determinations in this case, the Board acknowledges the Veteran's belief that his disability symptoms are more severe than the current ratings reflect. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which medical professionals examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions.

In reaching its determinations herein, the Board has considered the applicability of the benefit of the doubt doctrine. However, insofar as the Board has denied higher ratings, the preponderance of the evidence is against such aspects of the Veteran's claims. Therefore, the benefit of the doubt doctrine is not applicable, and those claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 

 

SONJA S. AN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McKenzie, Associate 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.