Citation Nr: 21032454 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-02 318 DATE: May 27, 2021 ORDER The February 1997 and May 2012 rating decisions previously considering and denying increased ratings for left shoulder and lumbar spine disabilities are final and binding determinations based on the evidence then of record. Entitlement to a rating higher than 20 percent for left shoulder replacement is denied. Entitlement to a rating in excess of 20 percent for the lumbar spine disability is denied. Entitlement to service connection for one painful scar associated with the already determined to be service-connected left shoulder replacement is granted. REMANDED Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for stroke residuals is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to the service-connected lumbar spine disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claims for increased ratings for his left shoulder disability and lumbar spine disability with left lower extremity radiculopathy were previously considered and denied in February 1997 and May 2012 rating decisions; and he did not complete the steps necessary to "perfect" an appeal of those prior decisions, and documentation constituting new and material evidence was not actually or constructively received within the appeal period following notification of those decisions, so they are final and binding determinations based on the evidence then of record. 2. He already has had a temporary 100 percent rating for his left shoulder replacement (with prosthesis) for the required one year (in fact, he had that rating for a little more than one year from August 31, 2016 to September 30, 2017); he is right-handed, so his left shoulder is his "minor" (i.e., non-dominant) shoulder, and it is not shown he has chronic residuals consisting of severe, painful motion or weakness in this affected extremity; 20 percent is the minimum rating assigned for a left shoulder replacement according to Diagnostic Code 5051, and this is his existing rating and contemplates that there are intermediate degrees of residual weakness, pain, or limitation of motion that is rated, by analogy, under Diagnostic Codes 5200 and 5203. 3. The Veteran's lumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS) is manifested by forward flexion to 35 degrees and extension to 20 degrees with pain but no ankylosis or incapacitating episodes. 4. He also has one painful left shoulder scar that is proximately due to, i.e., a residual of, his left shoulder replacement surgery, so owing to service-connected disability. CONCLUSIONS OF LAW 1. The February 1997 and May 2012 rating decisions earlier considering and denying increased ratings for the Veteran's left shoulder disability and lumbar spine disability with left lower extremity radiculopathy are not subject to review absent collateral attack on the basis of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105, 3.156, 19.20, 19.21, 19.52, 20.1103. 2. The criteria are not met for a rating higher than 20 percent for the left shoulder replacement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs/Codes) 5051, 5200, 5203. 3. The criteria are not met for a rating higher than 20 percent for lumbar spine degenerative arthritis with IVDS. Id., DC 5243. 4. But the criteria are met for entitlement to service connection for the left shoulder scar since secondary to the left shoulder replacement surgery. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to September 1985. This appeal to the Board of Veterans' Appeals (Board) is from November 2016 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) which, in the former, confirmed and continued the Veteran's then existing 20 percent rating for his left shoulder disability but, in the latter, assigned a temporary 100 percent rating for this disability because he had undergone surgery for left shoulder replacement with a prosthesis. A more recent January 2019 rating decision denied several other claims namely, for service connection for right lower extremity sciatica, for service connection for an acquired psychiatric disorder, for service connection for a cervical spine disability, for service connection for stroke residuals, and for a rating higher than 20 percent for degenerative arthritis of the lumbar spine and a rating higher than 10 percent for associated left lower extremity sciatica. That more recent rating decision did not include the appeal or concern the Veteran's left shoulder claim, which is in a separate appeal stream. But, in response to that more recent decision, he submitted a timely VA Form 21-0958, Notice of Disagreement (NOD), in February 2019, to initiate an appeal of those other claims. He then accordingly was provided a Statement of the Case (SOC) in July 2019 continuing to deny these several other claims. Notably, however, following receipt of that July 2019 SOC, he did not then complete the steps necessary to "perfect" his appeal to the Board of these several other claims by also filing a timely Substantive Appeal (VA Form 9 or written equivalent). According to VA regulations in effect during the relevant times at issue (meaning when the Board considered appeals in the prior "legacy" system), there was a sequential process for appealing a RO decision to the Board. More specifically, an appeal consisted of a timely filed NOD and, after provision of an SOC, additional receipt of a timely filed Substantive Appeal. See 38 C.F.R. § 20.200. A Substantive Appeal consisted of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. 38 C.F.R. § 20.202. A Substantive Appeal needed to be filed within 60 days from the date the RO mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ended later. 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes a final and binding determination based on the evidence then of record. See 38 C.F.R. § 20.1103. An extension of the 60-day period for filing a Substantive Appeal could be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal. Id. To this end, the Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). That said, the filing of a timely Substantive Appeal, as opposed to a NOD, is not a jurisdictional bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a Substantive Appeal. The Board, however, cannot raise a timeliness objection if, for instance, the RO had, for more than five years, treated the Veteran's claim as timely appealed and certified the issue to the Board, and, as is the case here, after the Board identified the issue at a hearing and took testimony on the issue. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a Substantive Appeal was not timely filed. Id. Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of good cause. But the U. S. Court of Appeals for Veterans Claims (Court) has held that there is no legal entitlement to an extension of time, instead, 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231 (1992). 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner. Thus, a claimant who fails to file a Substantive Appeal in a timely manner, and fails to timely request an extension of time, is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993); see also YT v. Brown, 9 Vet. App. 195 (1996). The Veteran testified in support of this appeal during a hearing before the undersigned Veterans Law Judge (VLJ) in August 2020. A transcript of the hearing is of record. Because the Board took hearing testimony on the issues of entitlement to an increased rating for the lumbar spine disability, increased rating and effective date for the left lower extremity neuropathy, service connection for right lower extremity neuropathy, increased rating for the left shoulder disability, service connection for stroke residuals, service connection for an acquired psychiatric disorder, service connection for a right knee disability, service connection for a cervical spine disability, service connection for bilateral upper extremity neuropathy, and entitlement to a TDIU, the Board has accepted jurisdiction over these additional claims. In July 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (i.e., an Appeals Modernization Act (AMA) Notice of Disagreement (NOD)), requesting adjudication of the issues of entitlement to a TDIU, service connection for a right knee disability, and service connection for bilateral upper extremity nerve conditions (neuropathy). While the appeals for an increased rating for left shoulder and lumbar spine disabilities were pending, the Veteran contended that a TDIU was warranted based on these disabilities. Therefore, the issue of entitlement to a TDIU is part and parcel of the increased rating claims on appeal in the legacy review system. There is an AMA appeal stream pending adjudication that includes the issue of entitlement to a TDIU; however, the issue of entitlement to a TDIU may concurrently exist in both the legacy review system and the AMA. Therefore, the issue of entitlement to a TDIU cannot be considered as having been bifurcated from the underlying claims for increased ratings for left shoulder and lumbar spine disabilities. Therefore, entitlement to a TDIU will be addressed in this decision. "Finality" of Prior Decisions for Increased Ratings for the Lumbar Spine and Left Shoulder Disabilities 1. The February 1997 and May 2012 denials of increased ratings for the lumbar spine and left shoulder disabilities are final and binding. During the August 2020 hearing before this Board, the Veteran's attorney argued that the Veteran's claims for increased ratings for his left shoulder and lumbar spine disabilities with derivative claim of lower extremity radiculopathy have been continuously pending since 1985. However, after review of the file, the Board finds this assertion is inaccurate. In September 1986, VA issued a rating decision grating the Veteran service connection for a left shoulder disability, rated initially as 20-percent disabling and for chronic back pain with left leg sensory radiculopathy and history of right radiculopathy (now characterized as lumber spine disability), retroactively effective from September 1985. He did not file a NOD in response to that rating decision, either as concerning the rating for his disability or effective date. Pursuant to VA standard procedure, the severity of the Veteran's left shoulder and lumbar spine with radiculopathy disabilities was reassessed, and a new rating decision was issued in June 1989. That subsequent rating decision lowered the Veteran's left shoulder rating to 10 percent prospectively effective October 1, 1989 due to apparent improvement of the disability and continued the 10 percent rating for his lumbar spine disability with associated radiculopathy. The Veteran filed a NOD specifically pertaining to his left shoulder disability in August 1989, and VA issued a SOC in September 1989 again confirming the decrease in his left shoulder disability rating. He did not submit a timely VA Form 9 or written equivalent. Despite that, VA issued a new rating decision in February 1990 based on an RO hearing, again denying his claim and confirming a decrease in his left shoulder rating to 10 percent and continuing the 10 percent rating for his lumbar spine disability with associated radiculopathy. He was properly notified of the decision. In June 1990, the Veteran's left shoulder and lumbar spine with radiculopathy appeal was certified to the Board, despite his failure to file a timely VA Form 9. In September 1990, these claims were remanded by the Board. The Veteran testified at a hearing before the Board in April 1992. These claims were again remanded by the Board in July 1992 with remand directives including that he undergo new VA examinations reassessing the severity of his left shoulder and lumbar spine with radiculopathy disabilities. To this end, he subsequently underwent the requisite examinations, and in February 1997 VA issued a decision reinstating his 20 percent rating for his left shoulder disability, retroactively effective from September 21, 1985, and granting a 20 percent rating for his lumbar spine disability with associated radiculopathy effective May 18, 1989. That same day, VA issued a Supplemental SOC (SSOC) denying ratings even higher than 20 percent for his left shoulder and lumbar spine with radiculopathy disabilities. A July 1997 Report of Contact shows that VA was contacted by the Veteran's then current Power of Attorney (POA), Disabled American Veterans (DAV), which stated, "I talked with Veteran about appeal, he stated he did not wish to continue with the appeal was happy with his recent increase on (2/11/97) rating decision." The Veteran confirmed this in writing to VA in August 1997. In October 2010, VA received correspondence from the Veteran indicating that he was claiming entitlement to increases in his left shoulder and lumbar spine with radiculopathy ratings. But a May 2012 rating decision continued the 20 percent ratings for his left shoulder and lumbar spine with radiculopathy disabilities. The record does not contain a NOD filed within one year of that May 2012 rating decision and, as such, that rating decision became final and binding. In September 2016, the Veteran filed a claim for a temporary total rating based on left shoulder surgery. A November 2016 rating decision denied his request for a temporary total evaluation based on left shoulder surgery because he did not respond to a request for private medical records showing proof of the surgery. He timely appealed that decision in a January 2017 NOD. He was then awarded a temporary total rating based on left shoulder replacement surgery in an October 2017 rating decision with a reversion, by operation of law, to 20 percent after the end of the temporary period he had that 100 percent rating. He had that temporary 100 percent rating from August 31, 2016 to October 1, 2017. Through his attorney, he timely appealed, requesting a rating higher than 20 percent after cessation of that mandatory temporary 100 percent rating, thus prompting, in part, this current appeal. In November 2017, the Veteran filed VA Form 21-0996, Intent to File, and later filed a claim for a separate rating for service connection for "bilateral lower and upper extremity neurological conditions," so including a claim for a separate rating for lower left extremity radiculopathy, prompting, in part, this appeal. He since has been awarded service connection and a separate rating for his left lower extremity radiculopathy effective November 3, 2017, the date he submitted the Intent to File. Of final note, the record also indicates that, in March 2021, the Veteran filed a duplicate claim for an increased rating for his left shoulder disability; however, this claim is already before the Board. But, given the prior procedural history, the February 1997 and May 2012 decisions denying entitlement to higher ratings for the left shoulder and lumbar spine with radiculopathy disabilities became final and binding and have not been continuously on appeal since 1985, despite the attorney's contentions to the contrary. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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 evaluations 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. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, the evidence of record shows that the Veteran's right hand is his dominant hand. The Board, thus, concludes that the right hand and right shoulder are the dominant hand and shoulder, so the rating criteria applied to his left shoulder at issue will be for the "minor" extremity. 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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). During the pendency of this 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 DCs "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). 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. Id. 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 onward. The criteria that is more favorable to the Veteran will be applied. See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 2. Entitlement to a rating in excess of 20 percent for left shoulder replacement (excluding the temporary 100 percent rating for replacement of this shoulder with prosthesis) The Veteran contends that his left shoulder disability is more severe than contemplated by his current 20 percent rating. The Veteran's left shoulder replacement is rated under DC 5051 for shoulder replacement (prosthesis). DC 5051 did not change under the February 2021 regulatory amendments. Under DC 5051 for the minor extremity, the minimum rating is 20 percent. For intermediate degrees of residual weakness, pain or limitation of motion, the disability should be rated by analogy under DCs 5200 and 5203. A 50 percent rating is warranted for chronic residuals consisting of severe, painful motion or weakness in the affected extremity. A 100 percent rating is warranted only for the first year following implantation of prosthesis. 38 C.F.R. § 4.71a, DC 5051. DC 5200 is for rating ankylosis of the scapulohumeral articulation. Id., DC 5200. DC 5200 did not change under the February 2021 regulatory amendments. The most recent VA examination of record from March 2021 shows that there is no ankylosis present in the Veteran's left shoulder, so a rating under this code is not appropriate. DC 5203, for impairment of the clavicle or scapula, did not change under the February 2021 regulatory amendments. Under DC 5203, a 20 percent rating for the minor extremity is warranted for nonunion of the clavicle or scapula with loose movement, or for dislocation of the clavicle or scapula. Id., DC 5203. The March 2021 VA examination shows no impairment of the Veteran's clavicle or scapula, so a rating under this DC would also be inappropriate. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved (DC 5200, etc.) when there is a compensable rating under the applicable DC. Id., DC 5003. DC 5003 only had a minor change under the February 7, 2021 regulatory amendments, that being clarification that DC 5003 now pertains only to degenerative arthritis, other than post traumatic. The Veteran's left shoulder arthritis has been diagnosed as degenerative arthritis, other than post traumatic and, as such, DC 5003 is applicable both prior to and from February 7, 2021. The remaining applicable DCs for the limitation of motion of the shoulder, not previously discussed, are DC 5201 and DC 5202. Prior to February 7, 2021, under DC 5201 for limitation of motion of the arm, a minimum 20 percent rating is assigned when the range of motion is limited to shoulder level, a 20 percent rating is also assigned when the maximum range of motion is limited to midway between side and shoulder level for the minor extremity, and a maximum 30 percent rating is assigned when range of motion of the minor arm is limited to 25 degrees from the side. Id., DC 5201. From February 7, 2021 onward, DC 5201 warrants a 20 percent rating for limitation of motion of the arm to shoulder level (flexion and/or abduction limited to 90 degrees). A 20 percent rating is also warranted for limitation of motion of the arm to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). Finally, a 30 percent rating for limitation of motion of the minor extremity is warranted for flexion and/or abduction limited to 25 degrees from the side. Id., DC 5201 (February 7, 2021). Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Finally, DC 5202 pertains to other impairment of the humerus. This DC did change under the February 7, 2021 regulatory amendments, however the Veteran has not been found to have any impairment of the humerus, so this DC is not for application either prior to, or from the date of the regulatory amendments. The Veteran underwent a VA shoulder examination in October 2016. The Board notes that at the time of this examination, the Veteran was in receipt of a temporary 100 percent rating for his left shoulder replacement surgery as it was within one year following the surgery. Thus, the results of this examination are not relevant to the period on appeal, from October 1, 2017 onward, when the Veteran was in receipt of a 20 percent rating for his left shoulder replacement. A March 2019 VA treatment record shows that the Veteran presented to VA for mental health treatment and reported that his neck, back, and shoulder pain was an 8 out of 10. A separate March 2019 VA treatment record shows that the Veteran reported aching left shoulder pain at a 7 out of 10. He also reported some left shoulder muscle spasms. At the August 2020 Board hearing, the Veteran's attorney stated that the October 2016 VA examination supports a 50 percent rating for the left shoulder disability. Again, though, the Board points out that the October 2016 examination took place during the one year temporary total evaluation period based on left shoulder surgery and, thus, it does not reflect the severity of the Veteran's left shoulder surgery residuals after the one year recovery period ended on October 1, 2017. In March 2021, the Veteran underwent the most recent VA examination for his left shoulder. The examiner observed that the Veteran had full internal and external rotation of his left shoulder but had painful flexion and abduction with endpoints limited to 55 degrees, where the normal endpoint is 180 degrees and shoulder height is 90 degrees. The Veteran reported that this limitation in range of motion causes functional loss because it is hard for him to complete everyday activities, hard to lift more than 20 pounds, and he cannot lift anything overhead. There was no additional loss in range of motion on passive testing or observed repetitive use testing. The Veteran reported no additional severity during flare-ups. The March 2021 VA examiner found no additional factors contributing to the disability - no crepitus, ankylosis, rotator cuff condition, instability, dislocation or residuals thereof, and no other condition of the clavicle, scapula, or humerus. Noted residuals of the Veteran's left shoulder replacement surgery include pain, reduced range of motion, and weakness. The Veteran reported regular use of a brace. The examiner reiterated that the Veteran has degenerative arthritis, other than post traumatic, in his left shoulder as confirmed by X-ray. As previously noted, in order to be entitled to the higher disability rating of 50 percent for his left shoulder replacement under DC 5051, the Veteran's disability would have to present with chronic residuals consisting of severe, painful motion or weakness in the affected extremity. The medical evidence of record shows that the Veteran's left shoulder disability was found to have some weakness, pain, and limitation of motion. Accordingly, the Board finds that the Veteran's disability does not more closely approximate a rating higher than 20 percent under DC 5051. The Board has considered the Veteran's statements regarding his limited function and his pain; however, finds that the determination on whether the Veteran's disability presents with chronic or intermediate degrees of residuals is a medical determination that the Veteran is not competent to make. Although the Veteran's was found to have intermediate degrees of residual weakness, pain or limitation of motion, the Board finds the Veteran is not entitled to a disability evaluation in excess of 20 percent under DC 5200 as the Veteran was not found to have any ankylosis. Additionally, regardless of the fact that no clavicle or scapula disability or symptoms were noted, DC 5203 does not provide for a disability rating in excess of 20 percent. 38 C.F.R. § 4.71a, DCs 5200, 5203. The Board has considered whether DC 5003 for arthritis would provide a more favorable rating for the Veteran's left shoulder disability as he was noted to have arthritis confirmed via X-ray. However, the evidence does not show that the Veteran's symptoms meet the criteria for a 30 percent disability rating under DC 5201 because his left shoulder disability does not limit the range of motion of his left arm to 25 degrees from his side. Additionally, the Board finds that the Veteran has not been found to have a humerus condition, therefore DC 5202 is not for application. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for left shoulder replacement, either under DC 5051, or another DC pertaining to the shoulder and arm. 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. 3. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative arthritis with IVDS The Veteran contends that he is entitled to a rating higher than 20 percent for his lumbar spine disability. The Veteran's degenerative arthritis of the lumbar spine with IVDS is currently rated under DC 5243 for IVDS. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. DC 5243 only had a minor change under the February 7, 2021 regulatory amendments, that being clarification that DC 5243 now is only for application when there is disc herniation with compression and/or irritation of the adjacent nerve root. The Formula for Rating IVDS Based on Incapacitating Episodes and the General Formula for Disease and Injuries of the Spine did not change. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine 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 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). The Veteran is already separately service connected for neuropathy of the lower left extremity. As will be discussed below, the Board is remanding the Veteran's claim for service connection for ED secondary to this lumbar spine disability. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The Board finds that the preponderance of the evidence is against a rating greater than 20 percent for the Veteran's lumbar spine disability based on incapacitating episodes. The evidence of record is against a finding that he was ever prescribed bed rest by a physician for a duration meeting the criteria for a higher rating. This finding is most recently reflected on the March 2021 VA lumbar spine examination. In October 2016 the Veteran underwent a VA lumbar spine examination at which time the Veteran reported that his lumbar spine disability causes functional loss due to stiffness and pain with radiculopathy. The Veteran demonstrated forward flexion to 60 degrees and extension to 15 degrees with pain. There was no ankylosis and at this point, there was no diagnosis of IVDS. A June 2017 private treatment record shows that after X-ray examination, a private doctor diagnosed the Veteran with lumbar spondylolysis without any radiculopathy. In December 2018 the Veteran underwent a VA lumbar spine examination. At this examination, he reported pain on movement that causes difficulty with prolonged walking, sitting, standing, bending over, changing from sitting to standing, lifting heavy objects, and squatting. Upon range of motion testing, he demonstrated forward flexion to 70 degrees and a full range of extension to 30 degrees, with pain noted on both. After repeated use over time testing, the Veteran had forward flexion to 50 degrees and extension to 20 degrees. He estimated that this limitation of range of motion was the same during flare-ups, which also consist of pain, fatigue, weakness, and lack of endurance. The examiner observed no muscle guarding or spasm resulting in an altered gait, no ankylosis, and no incapacitating episodes due to IVDS. Further, the examiner found pain on passive range of motion testing, but no pain on non-weight bearing testing. A February 2020 VA treatment record shows that the Veteran presented to the emergency room complaining of lumbar spine that onset two days prior. Most recently, the Veteran underwent a VA lumbar spine examination in March 2021. At this examination, he had forward flexion to 40 degrees and extension to 20 degrees with pain on both, which is consistent with his current 20 percent rating. The Veteran denied any flare-ups of pain and demonstrated forward flexion to 35 degrees and extension to 20 degrees after repeated use over time testing. During range of motion testing, the examiner observed pain, weakness, and lack of endurance. The Veteran stated that his lumbar spine disability causes functional impairment in that sitting and walking are difficult and painful. The examiner found no muscle guarding or spasm resulting in altered gait, no ankylosis, and no incapacitating episodes of prescribed bedrest. The examiner also noted that the Veteran has a lumbar spine scar, and the Board observes that the Veteran has since been awarded service connection for this scar. The preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, repetitive use, and pain during repetitive use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, his previous reports of flare-ups of pain, and denial of flare-ups at the most recent VA examination would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for lower left extremity radiculopathy. Further, as a result of this decision, the Veteran's claims for service connection for lower right extremity radiculopathy and ED secondary to his lumbar spine disability are being remanded for further development. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine with IVDS. 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. Service Connection 4. Entitlement to service connection for one painful scar associated with service-connected left shoulder replacement The Board observes that the Veteran has one painful scar that is attributed by the March 2021 VA examiner to his left shoulder replacement surgery. Service connection may be granted on a secondary basis for a disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The March 2021 VA shoulder examination shows that the examiner observed at least one scar associated with the Veteran's left shoulder surgeries, including his left shoulder replacement surgery. Pursuant to VA standard practices, the examiner completed a VA scars examination. The examiner noted multiple scars on the Veteran but found one scar owing to the Veteran's left shoulder replacement surgery that was tender to the touch, meaning painful. The Veteran was not observed to have any unstable or burn scars. On the shoulder VA examination, the examiner noted that this scar was of mild severity and he directly attributed it to the Veteran's left shoulder replacement surgery. Upon review of the record, the Board finds the Veteran has one painful scar proximately due to his left shoulder replacement surgery. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for one painful scar secondary to the Veteran's left shoulder replacement surgery is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102." REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy A review of the record shows that entitlement to a higher rating for lower left extremity radiculopathy is pending a VA examination addendum. As such, that further development must be completed. 2. Entitlement to service connection for right lower extremity radiculopathy The Board cannot make a fully-informed decision on the issue of service connection for lower right extremity radiculopathy because no VA examiner has opined whether it is secondary to his service connected lumbar spine disability. 3. Entitlement to service connection for an acquired psychiatric disorder At the August 2020 Board hearing, the Veteran's attorney stated that there are outstanding arrest and social actions report records from the Veteran's period of active service. Further, he stated that there may be outstanding VA treatment records from the Hines VA Medical Center (VAMC) showing continuity of psychiatric symptoms from separation of service that are not associated with the claims file. As such, VA must attempt to obtain these records if they exist. 4. Entitlement to service connection for stroke residuals. The Veteran has claimed multiple theories of entitlement for service connection for stroke residuals. At the August 2020 hearing, his attorney stated that they believe the Veteran's strokes and residuals may be either directly caused by repeated blows to the head the Veteran had while boxing during serivce, or secondary to an acquired psychaitric disability. Because a decision on the remanded issue of service connection for an acquired psychaitric disorder could significantly impact a decision on the issue of service connection for stroke residuals, to include as secondary to an acquired psychiatric disorder, the issues are inextricably intertwined. A remand is required. 5. Entitlement to service connection for a cervical spine disability The Veteran believes that he has a cervical spine disability that is the result of boxing injuries during service. VA treatment records include diagnosis of cervical spine spondylolysis. The Board cannot make a fully-informed decision on the issue of service connection for a cervical spine disability because no VA examiner has opined whether any cervical spine disability is directly related to his service, including repeated blows to the head and neck that occurred while boxing during service. 6. Entitlement to service connection for ED, to include as secondary to the service-connected lumbar spine disability During the August 2020 Board hearing, the Veteran's attorney testified that ED can sometimes be a neurological disability secondary to a lumbar spine disability and that the record supports that the Veteran has ED that is due to his lumbar spine disability. A review of the record does not show currently diagnosed ED or that any ED is due to the Veteran's service-connected lumbar spine disability. VA treatment records from May 2015 show the Veteran reported one psychiatric medication causing ED, so the evaluating practitioner ended the Veteran's prescription for that medication. During a subsequent December 2016 VA examination for stroke residuals, the Veteran denied having any ED. However, as the record on appeal shows a medical history of ED at least at some point during the pendency of this appeal, a VA examination and opinion are needed concerning this posited correlation of whether any ED the Veteran has had during the pendency of this appeal is attributable to service-connected disability including especially caused or aggravated by his service-connected low back disability. 7. Entitlement to a TDIU Finally, because a decision on the claims being remanded could significantly impact the decision on the issue of entitlement to a TDIU, the claims are "inextricably intertwined". While this TDIU claim was raised as part and parcel of the increased rating claims for the Veteran's lumbar spine and left shoulder disaiblities, his other pending claims also could have an impact on the disposition of his TDIU claim. Thus, the Board must defer considering this TDIU claim until completion of the additional development being directed concerning the other claims that are being remanded. Accordingly, these remaining claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran and his attorney if unable to obtain any additional records they identify with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. Obtain the Veteran's VA treatment records from the Hines VAMC in Chicago, Illinois, for the period from September 1985 to the present. If these records do not exist, document this in the file. 3. Attempt to obtain records pertaining to the Veteran's arrest during active service from either the Office of the Inspector General or the Air Force Office of Special Investigations. Document all attempts, including a negative response if the records cannot be located, in the claims file. 4. Re-adjudicate the issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy secondary to the lumbar spine disability after the pending VA addendum examination has been obtained. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right lower extremity radiculopathy is at least as likely as not caused OR aggravated by his service-connected lumbar spine disability (also when recognizing service connection already is in effect for left lower extremity radiculopathy owing to the lumbar spine disability). The examiner is asked to provide an opinion on both proximate cause AND aggravation. 6. Schedule the Veteran for a VA examination for his claimed erectile dysfunction (ED). The examiner is asked to opine as to whether the Veteran has ED (or has had ED at any time during or approximate to the pendency of this appeal) and if so, whether is at least as likely as not caused OR aggravated by his service-connected lumbar spine disability. The examiner is asked to provide an opinion on both proximate cause AND aggravation. 7. After VA has attempted to associated the Veteran's arrest records and treatment records from the Hines VAMC with the claims file, and any additionally indicated development has been completed, readjudicate the issue of service connection for an acquired psychiatric disorder, including the inextricably intertwined issue of service connection for stroke residuals on a direct and secondary basis. 8. Schedule the Veteran for a VA examination for his claimed cervical spine disability. The examiner must review the claims file. The examiner is asked to opine as to whether any cervical spine disability is at least as likely as not related to service, including repeated blows to the head and neck while boxing during service. Provide a rationale to support the opinion. 9. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.